CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: July 10, 2013

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1 CITY OF ENCINITAS CITY COUNCIL AGENDA REPORT Meeting Date: July 10, 2013 TO: VIA: FROM: City Council Members Gus Vina, City Manager Glenn Sabine, City Attorney Kathy Hollywood, City Clerk Jeff Murphy, Director of Planning and Building SUBJECT: Adoption of Resolution Reciting the Facts of the Special Municipal Election held on June 18, 2013, and Declaring the Results as Provided by Law BACKGROUND: State law mandates that following an election, the results must be certified by the Registrar of Voters ( ROV ) and a Resolution adopted by the City Council stating the results. The June 18, 2013, ballot included one item Proposition A, known as the Encinitas Right to Vote Amendment. The results of the June 18, 2013, Special Municipal Election were certified by the San Diego County ROV on Monday, June 24, The total number of ballots cast in the City, and the total number of ballots cast in each precinct for Proposition A are shown on Attachment A to proposed Resolution The certified results show that Proposition A passed with a majority of yes votes. At the time of this election there were 39,858 registered voters. In this election, 12,888 total ballots were cast 3,330 at the polls and 9,558 mail ballots. California Elections Code 9217 states: If a majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall become a valid and binding ordinance of the city. The ordinance shall be considered as adopted upon the date that the vote is declared by the legislative body, and shall go into effect 10 days after that date. No ordinance that is either proposed by initiative petition and adopted 07/10/2013 Item #03 Page 1

2 by the vote of the legislative body of the city without submission to the voters, or adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance. Upon the Council s certification of the election results, the Encinitas Right to Vote Amendment will be codified as Ordinance entitled An Ordinance of the People of the City of Encinitas, California, approving the Encinitas Right to Vote Amendment and will add chapter to the Encinitas Municipal Code. The initiative requires that the entire text of the measure be printed within all copies of the General Plan Land Use Element and the Zoning Code immediately following the table of contents. For the Zoning Code the first Chapter available is Chapter of Title 30 Zoning Code. The second chapter of the Zoning Code would then become ANALYSIS: The recommended action, if adopted by the Council, would certify the provisions of the ballot measure, Proposition A the Encinitas Right to Vote Amendment. For properties located outside of the Coastal Zone, the regulations established under the initiative go into effect immediately on July 21, 2013 (ten days after the results are declared by City Council) in accordance with Election Code, Section Please refer to Attachment 3 for the geographic boundaries of the Coastal Zone. On Monday, July 1 st, City staff received correspondence from the California Coastal Commission (CCC) responding to questions posed by staff pertaining to Proposition A and the City s Local Coastal Program. The letter can be found in Attachment 4 for your review. Staff is currently reviewing the 5-page letter and will work with the CCC and legal counsel to confirm the applicability and role of Coastal Commission on Proposition A, as well as their statutory authority and responsibility of Local Coastal Program implementation. Of particular note, the CCC determined in their letter the following: An ordinance that would affect the use of land in the coastal zone in a manner that is not permitted in a certified LCP or one that would potentially prohibit a use that is otherwise allowed in a certified LCP or Land Use Plan must be submitted to the Coastal Commission regardless of whether it was adopted by the legislative body or by the electorate. Such local actions that affect the regulation of land use in the coastal zone must be submitted to the Coastal Commission as LCP amendments; and, unless and until the Commission certifies the initiative as an LCP amendment, the initiative measure has no legal force or effect in the coastal zone for purposes of the Coastal Act. 07/10/2013 Item #03 Page 2

3 Staff will be working with the CCC staff, as expeditiously as possible, to facilitate the Coastal Commission s review and potential approval of the initiative s amendments under its jurisdiction. Planning and Building Department staff anticipates developing handouts summarizing the new requirements of the Proposition, the ongoing legal processing questions, and other issues. FISCAL IMPACT: A pre-election invoice in the amount of $301,138 was received from the ROV and a full accounting and final invoice should be received from the ROV in late July or early August As part of the FY rd Quarter Budget Review, the City Council approved a budget adjustment request of up to $500,000 to cover the costs of the election. RECOMMENDATION: Adopt Resolution reciting facts and declaring results of the Special Municipal Election held on June 18, ATTACHMENTS: 1. Resolution Ordinance Coastal Zone Map 4. Letter from Coastal Commission 07/10/2013 Item #03 Page 3

4 RESOLUTION NO A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ENCINITAS, CALIFORNIA, RECITING THE FACTS OF THE SPECIAL MUNICIPAL ELECTION HELD ON JUNE 18, 2013, DECLARING THE RESULT AND SUCH OTHER MATTERS AS PROVIDED BY LAW WHEREAS, a Special Municipal Election was held and conducted in the City of Encinitas, California on Tuesday, June 18, 2013, as required by law; and WHEREAS, notice of the election was given in time, form and manner as provided by law; that voting precincts were properly established; that election officers were appointed and that in all respects the election was held and conducted and the votes were cast, received and canvassed and the returns made and declared in time, form and manner as required by the provisions of the Elections Code of the State of California; and WHEREAS, pursuant to Resolution No adopted March 12, 2013, the County Election Department canvassed the returns of the election and has certified the results to this City Council, the results are received, attached and made a part hereof as "Attachment A". NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ENCINITAS, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. That the whole number of ballots cast in the City except vote by mail voter ballots was 3,330, that the whole number of vote by mail voter ballots cast in the City was 9,558 making a total of 12,888 ballots cast in the City. SECTION 2. That the following ballot proposition (known as Proposition A The Encinitas Right to Vote Amendment) placed on the ballot at the June 18, 2013, Special Muncipal Election, the number of votes received, and the percentage of overall votes are as follows: 07/10/2013 Item #03 Page 4

5 Shall the people of Encinitas adopt an initiative measure, known as The Encinitas Right to Vote Amendment to require voter approval, by a majority vote of the electorate, for a major amendment to a planning policy document (defined to mean the Land Use Element of the General Plan, Land Use Policy Maps of the General Plan, Zoning Code, Zoning Map, any specific plan, and development agreements)? Votes % of Vote YES % NO % SECTION 3. The City Council does declare and determine that as a result of the election, a majority of the voters voting on the measure voted in favor thereof and the measure shall be deemed adopted and ratified by the City Council as Ordinance No SECTION 4. The City Clerk shall enter into the records of the City Council of the City a statement of the result of the election showing: (1) The whole number of ballots cast in the City; (2) The name of the proposition voted for; (3) The number of votes given at each precinct for the proposition. AYES: NAYS: ABSTAIN: ABSENT: PASSED, APPROVED AND ADOPTED this 10 th day of July ATTEST: Teresa Arballo Barth, Mayor City of Encinitas Kathy Hollywood, City Clerk 07/10/2013 Item #03 Page 5

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9 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas TURN OUT Date:06/24/13 Time:14:28:42 Page:1 of 6 Reg. Voters Cards Cast % Turnout Jurisdiction Wide ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 9

10 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas TURN OUT Date:06/24/13 Time:14:28:42 Page:2 of 6 Reg. Voters Cards Cast % Turnout ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS-VBM % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 10

11 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas TURN OUT Date:06/24/13 Time:14:28:42 Page:3 of 6 Reg. Voters Cards Cast % Turnout CONGRESSIONAL DIST'S TH CONGRESSIONAL DIST STATE BOARD OF EQUALIZATION 4TH BD OF EQUAL DIST STATE SENATORIAL DIST'S TH SENATORIAL DIST Multiple Districts STATE ASSEMBLY DIST'S TH ASSEMBLY DIST Multiple Districts SUPERVISORIAL DISTRICTS RD SUPERVISORIAL DIST % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 11

12 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas PROP A CITY OF ENCINITAS Right to Vote Amendment Date:06/24/13 Time:14:28:42 Page:4 of 6 Reg. Voters Votes YES NO Jurisdiction Wide ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 12

13 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas PROP A CITY OF ENCINITAS Right to Vote Amendment Date:06/24/13 Time:14:28:42 Page:5 of 6 Reg. Voters Votes YES NO ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS ENCINITAS-VBM % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 13

14 CITY OF ENCINITAS SPECIAL MUNICIPAL ELECTION Tuesday, June 18, 2013 Official Canvass Results - City of Encinitas PROP A CITY OF ENCINITAS Right to Vote Amendment Date:06/24/13 Time:14:28:42 Page:6 of 6 Reg. Voters Votes YES NO CONGRESSIONAL DIST'S TH CONGRESSIONAL DIST STATE BOARD OF EQUALIZATION 4TH BD OF EQUAL DIST STATE SENATORIAL DIST'S TH SENATORIAL DIST Multiple Districts STATE ASSEMBLY DIST'S TH ASSEMBLY DIST Multiple Districts SUPERVISORIAL DISTRICTS RD SUPERVISORIAL DIST % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % 07/10/2013 Item #03 Page 14

15 ORDINANCE AN ORDINANCE OF THE PEOPLE OF THE CITY OF ENCINITAS, CALIFORNIA, APPROVING THE ENCINITAS RIGHT TO VOTE AMENDMENT THE PEOPLE OF THE CITY OF ENCINITAS DO ORDAIN AS FOLLOWS: Title 30 of the Encinitas Municipal Code is hereby amended by adding a new Chapter to read as follows: Chapter ENCINITAS RIGHT TO VOTE AMENDMENT Sections: Section 1. Title Section 2. Statement of Purposes and Intent Section 3. Planning Policy Documents Covered Section 4. Types of Amendments Covered Section 5. Amendments to Encinitas Planning Policy Documents Section 6. City Wide Height Limits Section 7. This Measure Amends Existing Policy Documents Section 8. Effective Date Section 9. Priority Section 10. Severability Section 11. Conflict with Other Ballot Measures Section 12. Amendment or Repeal Section 13. Request for Special Election Section 1. TITLE This measure shall be known as the Community Character and Voters Rights Initiative Section 2. STATEMENT OF PURPOSES AND INTENT. Our Zoning Map, General Plan and Zoning Ordinances provide important protections to many aspects of our community. This measure gives the Voters of Encinitas final word on major increases in zoning density or intensity of land use. In doing so, it is the intent of this measure to: Protect our natural resources such as lagoons, watershed, riparian, and wildlife habitat, natural vegetation, bluffs, and hillsides for our lives, our children s lives and future generations. 07/10/2013 Item #03 Page 15

16 Prevent the urbanization of our small town character and maintain the individual character of our five unique communities Ensure infrastructure and public benefits, such as schools, parks, roads, sewer, and water facilities, are adequately planned and funded prior to approving any increase in zoning Preserve our community s zoning and property rights in perpetuity, if we so choose. This measure does not limit development as currently permitted under existing vested property rights of land owners. It entrusts the protection of the community s shared property rights, including the final approval on proposed increased zoning densities, to the majority vote of the Voters of Encinitas Section 3. PLANNING POLICY DOCUMENTS COVERED After this measure becomes effective, no repeal, amendment or adoption of all or part of the following land use planning policy documents of the City of Encinitas may become effective unless and until there is compliance with provisions of this initiative measure: a. The text of the Encinitas General Plan's Land Use Element, b. The Land Use Policy Maps of the Encinitas General Plan (including the following policy maps: Land Use Policy: Cardiff-by-the-Sea LU-59, Land Use Policy: Leucadia LU-64, Land Use Policy: New Encinitas LU-67, Land Use Policy: Old Encinitas LU-73, and Land Use Policy: Olivenhain LU-77), c. The text of the Encinitas Zoning Regulations (Title 30 of the Encinitas Municipal Code), d. The Zoning Map of the City of Encinitas, e. Any Specific Plan for a geographic area within the City, or f. Any Development Agreement granting rights to develop private or public land In this initiative measure the above six items are referred to as the "Planning Policy Documents." Section 4. TYPES OF AMENDMENTS COVERED A "Major Amendment" of any of the Planning Policy Documents means any amendment which results in any of the following changes to the development standards for any parcel of land affected by the proposed amendment: a. Increases the maximum allowable number of residential units which may be constructed on any parcel or group of parcels. b. Increases the maximum allowable number of separate parcels which may be created from an existing parcel or group of parcels. c. Changes zone type for a parcel or parcels from Agricultural, Public/Semi-Public, Ecological Resource/Open Space/Parks or Open Space to a different zone type. d. Changes zone type for a parcel or parcels from a non-mixed-use zone to mixed-use type zone resulting in additional residential units where none were previously permitted, 07/10/2013 Item #03 Page 16

17 allowing commercial where commercial was not previously permitted or increasing the maximum allowable residential units. e. Changes a parcel or parcels from any residential land use to allow any other nonresidential land use. f. Increases the allowed maximum height of development or changes how height is measured such that additional height could be permitted than previously permitted. g. Increases the maximum allowable commercial or retail square footage for a parcel or group of parcels. h. Repeals any of the Planning Policy Documents A "Regular Amendment" of any of the Planning Policy Documents includes any amendment which is not a Major Amendment Section 5. AMENDMENTS TO ENCINITAS PLANNING POLICY. DOCUMENTS No Major Amendment of any of the Planning Policy Documents shall be effective unless and until it is approved by a simple majority vote of the voting electorate of the City of Encinitas voting `YES' on a ballot measure proposing the Major Amendment at a regular or special election. The entire text of a Major Amendment and an easily readable map of the geographic area affected shall be included in the sample ballot material which is mailed to registered voters prior to the election No Major Amendment and no Regular Amendment of any of the Planning Policy Documents shall be effective unless and until it is approved by an ordinance adopted by the City Council, but no such amendment shall be considered until a public hearing is conducted on the proposed amendment at both the Planning Commission and at the City Council in the manner provided by state law and advance notice is given as required by section 4.3 below No public hearing to consider an amendment of any of the Planning Policy Documents shall be conducted less than 20 days after the date a notice accurately describing the proposed amendment is sent by first class mail to the owners of each parcel of land, and a notice is sent by first class mail addressed to the occupant of each lawful unit on each parcel of land, located within a radius measured outward 500 feet from the boundaries of each parcel of land affected by the proposed amendment The notice described in section 4.3 shall include at least all the following information in not less than 13 point type: a. The name of the applicant proposing the amendment. b. The total acreage of the area proposed for amendment. c. A easily readable map of all parcels affected by the amendment, including all street names. d. The land uses and building density currently allowed for each parcel affected. e. The land uses and building density proposed to be allowed for each parcel affected. f. The date, time, and place of the upcoming public hearing All Major Amendment and all Regular Amendment of any Planning Policy Documents shall be required to adhere to the Encinitas Community Participation Program as described in Chapter of the Encinitas Municipal Code. 07/10/2013 Item #03 Page 17

18 Section 6. CITY WIDE HEIGHT LIMITS Maximum Height. On and after the date this initiative measure becomes effective no building or structure shall exceed a maximum height of two stories or 30 feet. Height shall be measured from the lower of the natural or finished grade adjacent to the structure, to the highest portion of the roof immediately above Exemptions to Height Limit. The following structures are exempted from this height limit: Medical Complex development projects and specified buildings associated with a public high school on a minimum 10 acre site, as currently provided in Section (C) and (D) of the Encinitas Zoning Code Section 7. THIS MEASURE AMENDS EXISTING POLICY DOCUMENTS Once adopted by the voters, this measure shall amend and become a new part of the Encinitas General Plan's Land Use Element and the Encinitas Zoning Code (Title 30 of the Encinitas Municipal Code) After the date this measure becomes effective the entire text of this measure shall be printed within all copies of the Encinitas General Plan Land Use Element and also within all copies of the Encinitas Zoning Code, and it shall appear immediately following the table of contents of each such document. 7.3 This measure repeals Policy 3.10, Exceptions 4 and 5 of Policy 3.12, and Policy 7.10 of the Encinitas General Plan s Land Use Element and Section (B)(6)(d) of the Encinitas Zoning Code. This measure does not repeal the remaining policies found in Goal 3 (growth management) of the Encinitas General Plan s Land Use Element, but intends to supplement (i.e., add to) the voter requirements found in those policies Section 8. EFFECTIVE DATE The provisions of this initiative measure shall become effective at twelve o'clock noon the day after it is approved at an election of the voters of the City of Encinitas. It shall be considered as adopted upon the date that the result of the election is declared by the City of Encinitas City Council, and shall go into effect 10 days after that date as specified in Section 9217 of the California Elections Code Section 9. PRIORITY Once this initiative measure becomes effective, its provision shall prevail over and supersede all provisions of the municipal code, ordinances, resolutions, and administrative policies of the City of Encinitas which are in conflict with any provisions of this measure Section 10. SEVERABILITY In the event a final judgment of a court of proper jurisdiction determines that a provision of this initiative measure, or a particular application of a provision, is invalid or unenforceable 07/10/2013 Item #03 Page 18

19 pursuant to a state or federal law or constitution, the invalid or unenforceable portion or application shall be severed from the remainder of this measure, and the remaining portions of this measure shall remain in effect without the invalid or unenforceable provision or application Section 11. CONFLICT WITH OTHER BALLOT MEASURES In the event that any other ballot measure is proposed for voter approval on the same election ballot as this initiative measure, and that other measure contains provisions which deal with the same or similar subjects, it is the intent of the voters in adopting this measure that it shall prevail over any such other ballot measure in its entirety to the extent that this measure is approved and receives a greater number of votes for approval of the other measure. In such case, no provision of the other measure shall become effective Section 12. AMENDMENT OR REPEAL Once this initiative measure becomes effective no provision of this measure may be amended or repealed except by a majority of the voters of the City of Encinitas voting on a ballot measure for that purpose Section 13. REQUEST FOR SPECIAL ELECTION In the event that the initiative petition is signed by not less than 15 percent of the voters of the city according to the last report of registration by the county elections official to the Secretary of State, a special election to approve this ordinance is hereby requested pursuant to Section 9214 of the California Elections Code. PASSED, APPROVED AND ADOPTED by the People of the City of Encinitas at a Special Municipal Election held on the 18 th day of June 2013, and Election Results certified by the Encinitas City Council on the 10 th day of July Kathy Hollywood, City Clerk City of Encinitas, California 07/10/2013 Item #03 Page 19

20 S E l C a m i n o R e a l B u m a n n R d N e p t u n e A v e N V u l c a n A v e L a C o s t a A v e H y g e i a A v e H y g e i a A v e I - 5 E o l u s A v e I - 5 N C o a s t H i g h w a y T h i r d S t P i r a e u s S t O r p h e u s A v e W B S t W I S t O c e a n V i e w A v e K S t B u r g u n d y R d L e u c a d i a B l v d E D S t U r a n i a A v e C o r n i s h D r A r d e n D r S a x o n y R d U n i o n S t Q u a i l G a r d e n s D r R e q u e z a S t S a n t a F e D r S a n E l i j o A v e H a w k V i e w D r S i d o n i a S t S a x o n y R d M a c k i n n o n A v e C a m b r i d g e A v e R o s e b a y D r L y n w o o d D r M e l b a R d W i n d s o r R d N o l b e y S t F r e d a L n V i a C a n t e b r i a S e e m a n D r L a k e D r E n c i n i t a s B l v d C r e s t D r N E l C a m i n o R e a l V i a M o l e n a W o t a n D r J o l i n a W a y O l i v e n h a i n R d G l e n A r b o r D r R o d n e y A v e C e r r o S t G l e n A r b o r D r 1 4 t h S t 1 3 t h S t N R a n c h o S a n t a F e R d J a c k i e L n L o n e J a c k R d L a t i g o R o w D o v e H o l l o w R d S e a q u e s t T r l M a n c h e s t e r A v e N e w p o r t A v e 5 W a l e s D r Coastal Zone Boundary (Approximate)!!!!! Encinitas Boundary Sphere of Influence C o a s t a l Z o n e DISCLAIMER: This map should not be used for Engineering, Survey, or Site-Specific Analysis. Every reasonable effort has been made to assure the accuracy of the data provided; nevertheless, some information may not be accurate. The City of Encinitas assumes no liability or responsibility arising from the use of or reliance upon this information. - Map Coordinates: Stateplane NAD83 Feet, CA Zone 6 - Parcel lines are not survey accurate, and some parcels can be positionally off up to +/- 40 feet - Photo flight dates: July inch pixel resolution. Digital true color. - Orthophoto and Topo positional accuracy meet the precision adequate to support National Map Accuracy Standards for 1" = 100' mapping. Feet 0 3,000 6,000 07/10/2013 Item #03 Page 20

21 STATE OF CALIFORNIA -- THE NATURAL RESOURCES AGENCY CALIFORNIA COASTAL COMMISSION SAN DIEGO AREA 7575 METROPOLITAN DRIVE, SUITE 103 SAN DIEGO, CA (619) EDMUND G. BROWN, JR., Governor July 1, 2013 Jeff Murphy Director, Planning & Building Department City of Encinitas 505 South Vulcan Avenue Encinitas, CA Re: Response to dated May 29, 2013 regarding Proposition A Dear Mr. Murphy, This office has had discussions with City staff about the implementation of an initiative, referred to as Proposition A, in the City that was approved by a local election on June 18, 2013, specifically as it relates to the Coastal Act and the City s certified Local Coastal Program (LCP). In brief, as Commission staff understands the provisions of Proposition A, it would provide for the following: Require voter approval for any amendments to the General Plan, Zoning Code or Zoning Map, approved specific plans or approved development agreements that increase the maximum number of residential units or commercial intensity of a site; increase the maximum allowable number of parcels that could be created from a site; rezone a site from residential to non-residential use or change the applicable zoning of a site to mixed use zone that would allow new or additional residential units or more intensive commercial use; Establish a maximum height limit of two stories and 30 feet throughout the City, except for specifically identified medical developments and public school facilities; Modify the measurement of building height in the zoning ordinance; and Amend existing public hearing notice requirements for amendments. As a result of our informal staff discussions, on May 29, 2013, we received an from you asking for Commission staff responses to the following questions. We have restated your questions in italics below, followed by our responses. 1. Does the Coastal Commission need to approve/certify all, or a portion of Proposition A before it can take effect on property located within the Coastal Zone? Briefly, the answer is yes. Sections 30514(a) and (e) of the Coastal Act state [a] certified local coastal program and all local implementing ordinances, regulations, and other actions may be amended by the appropriate local government, but no such amendment shall take effect until it has been certified by the commission and [f]or 07/10/2013 Item #03 Page 21

22 Jeff Murphy July 1, 2013 Page 2 purposes of this section, amendment of a certified local coastal program includes, but is not limited to, any action by a local government that authorizes the use of a parcel of land other than a use that is designated in the certified local coastal program as a permitted use of the parcel. (Emphasis added) An ordinance that would affect the use of land in the coastal zone in a manner that is not permitted in a certified LCP or one that would potentially prohibit a use that is otherwise allowed in a certified LCP or Land Use Plan must be submitted to the Coastal Commission, regardless of whether it was adopted by the legislative body or by the electorate. Such local actions that affect the regulation of land use in the coastal zone must be submitted to the Coastal Commission as LCP amendments; and, unless and until the Commission certifies the initiative as an LCP amendment, the initiative measure has no legal force or effect in the coastal zone for purposes of the Coastal Act. 2. If so, what portions need to be certified, what is the process, and how long will it take to complete? It appears that multiple portions of the initiative may directly modify or indirectly impact the LCP. First, Land Use Policy 6.6 of the City s certified Land Use Plan states: The construction of very large buildings shall be discouraged where such structures are incompatible with surrounding development. The building height of both residential and non-residential structures shall be compatible with surrounding development, given topographic and other considerations, and shall protect public views of regional or statewide significance. Unlike most other certified land use plans, there was no specific height limit adopted for development in the Encinitas LCP. The proposed initiative states [o]n and after the date this initiative measure becomes effective no building or structure shall exceed a maximum height of two stories or 30 feet. Without commenting on the merits of the proposed 30 ft. height limit, to be effective in the coastal zone under the authority of the Coastal Act, that provision in the initiative would need to be incorporated into the LCP, thus an LCP amendment would be needed. Second, in addition to the aforementioned establishment of a specific height limit, the initiative also proposes a new standard for the measurement of height which reads: Height shall be measured from the lower of the natural or finished grade adjacent to the structure, to the highest portion of the roof immediately above. Again, without commenting on the merits of the proposed standard, the proposed adoption of a new building height limit and measurement clearly modifies or revises certified provisions of the Zoning Code which are part of the certified LCP Implementation Plan as follows: Chapter (relating to the definition of building height); Chapter of the Zoning Code (specifically related to the establishment of a base elevation for the finished building pad and height of development on a sloped lot), and various individual Specific Plans; thus, an LCP amendment would be required for these changes to be effective in the coastal zone. 07/10/2013 Item #03 Page 22

23 Jeff Murphy July 1, 2013 Page 3 Third, without reference to the certified LCP provisions on public noticing for amendments to the LCP, the initiative specifies new public noticing measures that would also need to be reconciled with the existing LCP. Lastly, language in the initiative also appears to conflict with the language on Page 1-2 of the Introduction to the City s certified Land Use Plan that clarifies LCP policies take precedence over non-lcp provisions in the General Plan. The language reads as follows: Where any policy or provision of the General Plan that is a part of the Local Coastal Program Land Use Plan (LUP) conflicts with any policy or provision of the General Plan that is a not a part of the Local Coastal Program Land Use Plan (LUP), the LUP Policy or provision shall take precedence in the area of the City within the Coastal Zone. Where two or more LUP policies or provisions conflict with each other, the conflict shall be resolved in a manner which on balance is most protective of significant coastal resources. In summary, the initiative s provisions relative to the establishment of a specific height limit and a new standard for the measurement of height represent the elements that most clearly affect land use regulation in the City. These elements would need to be incorporated into the LCP to be effective in the coastal zone pursuant to the Coastal Act. Relative to process and the time needed to complete an LCP amendment, the process is the same as for any other proposed LCP amendment. Once an LCP amendment is deemed complete and filed in our office, the Coastal Act provides that land use plan amendments should be acted upon within 90 days of filing and implementation plan amendments should be acted upon within 60 days of filing; however, the Act also provides in Section that a one year time extension may be granted. Given existing workload demands and our limited staff resources, it is generally very difficult to process LCP amendments in the cited timeframes and extensions of time are routinely requested. Nonetheless, as part of the Commission s existing efforts to advance our LCP coordination and work with local governments, we are already committed to prioritizing LCP work. Understanding the time sensitivity for the City, Commission staff would work with the City to expedite review of any resulting LCP amendments and target a hearing before the Commission in San Diego County, Orange County or Los Angeles County to maximize public participation. 3. If passed, Proposition A will require that General Plan Amendments/Rezones that increase density and intensity will require approval of both City Council and the electorate of the City. If the Coastal Commission s role is to review amendments for consistency with Coastal Act Requirements, at what step in the process should the Coastal Commission hold a hearing to review and certify a proposed amendment? After Council approval, should Coastal action be before or after the election? 07/10/2013 Item #03 Page 23

24 Jeff Murphy July 1, 2013 Page 4 Based on court precedents and an opinion from the Attorney General s Office, the Commission would review an LCP amendment adopted through the initiative process after the voters have adopted the amendment. Furthermore, when it reviews an LCP amendment adopted through initiative, as with any LCP amendment, the Commission retains the authority to certify, refuse to certify, or to certify the amendment with suggested modifications. Within the coastal zone, the LCP amendment(s) would only become legally effective with Commission certification of the LCP amendment request. Any specific land use redesignations or re-zonings promulgated by a vote of the electorate would require separate LCP amendments from the Coastal Commission before becoming legally effective within the City s coastal zone. 4. LCPs generally specify appropriate location, type and scale of new or changed uses of land and water and cover many coast-related issues addressed under the Coastal Act. On May 22nd, the City Council eliminated Land Use Policy and amended Policy In short, these changes now require that General Plan Amendments and/or rezones that increase the density/intensity of a planned land use must be approved via a public vote (similar to what was being proposed in Prop A). Furthermore, a new land use policy 3.14 was added that requires voter approval for any comprehensive General Plan updates. A copy of the resolution showing the changes is also attached. a. We find that because these changes impacted process only, and do not advance or interfere with the policies of the Coastal Act, the changes do not require Coastal Commission approval. Do you concur? b. If not, what is the process and how long will it take to complete? With regard to the City Council changes adopted on May 22, 2013, Commission staff concurs but would make the following observations and comments. As you are certainly aware, the construction of the City s certified LCP is distinctive in that the certified land use plan is embedded in the City s General Plan. The entirety of the City s General Plan is not contained within the certified LCP, rather it is only certain highlighted policies therein that constitutes the bulk of the certified land use plan. We are therefore concerned about the potential under the City s proposed adoption of new land use policy 3.14 for the development of a comprehensive General Plan update that would need to be reconciled with the existing General Plan that presently contains within it the certified land use plan. There would be no benefit to the City, property owners, general citizenry, broader public or the Commission to have two different general plans and we would hope that such a situation would never be promoted. I hope this responds to your questions. If you have additional questions or need further clarification, please don t hesitate to contact me at the above office. Thank you for your patience and efforts to assure compliance with the State s coastal management program. 07/10/2013 Item #03 Page 24

25 Jeff Murphy July 1, 2013 Page 5 Sincerely, Eric Stevens Coastal Program Analyst CC: Sherilyn Sarb, Deputy Director, California Coastal Commission Deborah Lee, District Manager, California Coastal Commission (G:\San Diego\Eric\Letters\To Cities\Encinitas\Encinitas Prop A response letter doc) 07/10/2013 Item #03 Page 25