California Coastal Law Conference 2013

Transcription

1 California Coastal Law Conference 2013 An Interactive Discussion on the Evolving Coastal Environment October 8, 2013

2 2 Howard Coleman Partner Nossaman LLP Ellen Hou Legislative Assistant Assemblyman Rich Gordon John Erskine Partner Nossaman LLP Steve Kinsey Vice-Chairman California Coastal Commission Ralph Faust Chief Legal Counsel, Retired California Coastal Commission Charles Lester Executive Director California Coastal Commission

3 3 Jennifer Lucchesi Executive Officer California State Lands Commission Jamee Jordan Patterson Supervising Deputy Attorney General California Attorney General s Office Bonnie Neely Senior Policy Advisor Nossaman LLP Greg Sanders Partner Nossaman LLP

4 JENNIFER LUCCHESI Executive Officer California State Lands Commission

5 DR. CHARLES LESTER Executive Director California Coastal Commission

6 Questions?

7 Navigating the Coastal Development Permit Process Track I - Maurice Braun Ballroom Presented by: Bonnie Neely, John Erskine, Ralph Faust, Steve Kinsey, and Charles Lester

8 Overview of the Coastal Act What is the Coastal Act? Enacted by Statute (1976) After Prop. 20 was passed by the voters in 1972, the Legislature passed the California Coastal Act, Cal. Pub. Res. Code 30000, established a statewide coastal protection program and made the Commission a permanent fixture in the regulation of California s coastal zone. 8

9 Why the Coastal Act? The Historical Environmental Setting for Creation of the Coastal Act and Commission January 29, 1969 Santa Barbara Oil Spill

10 Why the Coastal Act? June 1970: first of 10 Coronado Beachfront Condominium Towers Built (each 15-story on 32 acres). Largest oceanfront complex in the state: 10 buildings 1,467 units Exempted from the 1972 Coastal Initiative after years of legal challenges (project completed in 1972)

11 What is the Makeup of the Coastal Commission? 15 Members 12 Voting Members 6 at-large members 6 locally elected officials from 6 coastal areas 3 Non-Voting Members, representing: State Lands Commission Resources Agency Business, Transportation and Housing Agency Governor has 4 appointees who serve at the pleasure of the Administration Senate Pro-Tem and Speaker of the Assembly each have 4 appointees that serve 4-year fixed terms

12 2013 California Coastal Commissioners Dayna Bochco Alternate: Belinda Faustinos Brian Brennan Alternate: Vacant Gregory Cox Alternate: Olga Diaz Dr. Robert Garcia Alternate: Jeff Duclos Carole Groom Alternate: Maricela Morales Steve Kinsey, Vice Chairman Alternate: Sarah Glade Gurney Martha McClure Alternate: Vacant Wendy Mitchell Alternate: Steve Kram Mary K. Shallenberger, Chair Alternate: Effie Turnbull-Sanders Mark Vargas Alternate: Vacant Jana Zimmer Alternate: Terry Bowman

13 Commission s Geographic Reach? What is the Coastal Commission s geographic jurisdiction? Encompasses 1,100 miles of CA coastline SF Bay BCDC Exempted Inland boundary generally 1,000 yards - can extend up to five miles inland Several legislative additions/exclusions, by County, in Chapter 2.5 Revision to the Coastal Zone Boundary.

14 What Does the Commission Do? Primary Functions: Issues Coastal Development Permits (CDPs) Approves and reviews Local Coastal Programs and Amendments Handles Appeals of Coastal Development Permits issued by local jurisdictions Conducts enforcement actions

15 California Coastal Commission: How Is It Different? Governor doesn t appoint a majority of the Commissioners CCC requires a Coastal Development Permit in addition to a local building permit Must obtain Coastal Development Permit after local government permit is issued

16 Jurisdiction After Local Coastal Plan (LCP) Certification Role of Coastal Cities and Counties Complete and update LCPs Issue CDPs consistent with certified Local Coastal Plans Coastal Commission retains jurisdiction in the appeal zone Coastal Commission retains jurisdiction over state tidelands, submerged lands and public trust lands

17 Basic Requirement for CDPs PCR 30600(a): Except as provided in subdivision (e), and in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person, as defined in Section 21066, wishing to perform or undertake any development in the coastal zone, other than a facility subject to Section 25500, shall obtain a coastal development permit.

18 Public Resources Code 30106: Development Broadly Defined Development means, on land, in or under water, the placement or erection of any solid material or structure; discharge or disposal of any dredges material or of any gaseous, liquid, solid or thermal waste; grading, removing, dredging, mining or extraction of any materials; change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act and any other division of land, including lot splits; change in intensity of use of water; construction, reconstruction, demolition or alteration to the size of any structure; and the removal of harvesting vegetation other than for agricultural purposes.

19 Coastal Development vs. Development Outside the Coastal Zone Policies regarding Environmentally Sensitive Habitat Areas (ESHA) are stricter in the Coastal Zone Project impacts outside Coastal Zone can be mitigated; CEQA allows for statement of overriding considerations Developments within the Coastal Zone cannot impact sensitive habitat; mitigation, with limited exceptions, is not allowed

20 Exclusions / Administrative Approvals PRC Code 30610: Projects Authorized Without CDPs (a) SFDs, except where Commission has specified classes of development involving risk of adverse environmental effect; (b) Improvements to other structures or public works; (c) Maintenance dredging; (d) Repair or maintenance activities with no enlargement or expansion of the object of repair; (e) Specific developments in specific geographic areas identified as having no adverse environmental effect (requires 2/3 vote); (g) Replacement of any structure destroyed by a disaster (as (i) defined); Temporary events (see Guidelines).

21 CDP Processing Identify jurisdiction s rules, including appealable areas and projects CDP processing

22 Overview of Chapter 5 Coastal Development Permits Issued by Coastal Commission 14 California Codes of Regulations (overview) Article 1. When local applications must be made first Article 2. Application for permit Article 3. Applications notice requirements Article 4. Schedule of Fees Article 5. Determination concerning filing Article 6. Staff reports

23 Moving the CDP Through the Notice of Incomplete Application Gauntlet; Supplemental Information and 14 CCR (d) Appeals Submitting additional information; CCC staff responses; communicating with coastal staff. An applicant may also appeal directly to the Commission pursuant to 14 CCR 13056(d) a determination by the Executive Director and regional staff that an application is incomplete. The appeal shall be in writing and shall be scheduled for appeal at the next commission hearing or no later than sixty (60) calendar days after receipt of the appeal of the filing determination.

24 14 CCR (d) Appeals of Incomplete Application Determinations to Commission An applicant may appeal to the commission a determination by the executive director that an application is incomplete. The appeal shall be submitted in writing. The executive director shall schedule the appeal for the next commission hearing or as soon thereafter as practicable but in no event later than sixty (60) calendar days after receipt of the appeal of the filing determination and shall prepare a written recommendation to the commission on the issues raised by the appeal of the filing determination. The commission may overturn the executive director's determination and/or direct the executive director to prepare a different determination reflecting the commission's decision. Otherwise, the executive director's determination shall stand. The executive director shall issue any such different determination that the commission may direct no later than sixty (60) calendar days after receipt of the appeal of the filing determination.

25 CDP Processing Regs Set Forth at 14 CCP Coastal Commission procedural rules for processing; 49 day rule 14 California Code of Regulations CEQA Equivalency

26 Ex Parte Communications (In General) Ex Parte Communication is any oral or written communication between a member of the commission and an interested person, about a matter within the commission s jurisdiction, which does not occur in a public hearing, workshop, or other official proceeding, or on the official record of the proceeding on the matter.

27 Navigating the Coastal Process From a Former Staff Member s Perspective Ralph Faust Chief Legal Counsel (Retired), California Coastal Commission Facts that determine the Staff recommendations How the Commissioners view CDPs, Appeals, etc.

28 Communicating with the Coastal Commissioners Steve Kinsey Vice Chair, California Coastal Commission

29 Questions?

30 Climate Change, Sea Level Rise & Our Changing Coastline Track II - Charles Reiffel Presented by: Howard Coleman, Ellen Hou and Jennifer Lucchesi

31 Howard Coleman Nossaman LLP

32 Jennifer Lucchesi Sea Level Rise and the State Lands Commission

33 Ellen Hou Sea Level Rise and the California Economy

34 Outline Origin of the Select Committee Mission Statement Hearings Next Steps

35 Origin of Select Committee 24 th Assembly District Assemblyman Gordon again represents San Mateo County coastline Experienced with issues of sea level rise previously member of BCDC member of Budget Subcommittee #3 Lack of discussion at a statewide level in the Legislature Wanted to work and devote time to a long-term issue

36 Mission Statement Established to thoroughly review the challenges ahead in addressing the expected impacts of climate change on the California Economy Select Committee will examine in research and hearings the impact of sea level rise on coastal agriculture, parks and other state lands, the fishing industry, and ports and infrastructure, as well as examine the existing authority granted to state entities such as the Coastal Commission, the State Lands Commission, the San Francisco Bay Conservation and Development Commission, and the Coastal Conservancy

37 First Select Committee Hearing Overview and Impact of Sea Level Rise in CA Held in State Capitol on May 15, 2013 Three panels Discussed the threats and issues facing CA Set the stage for the following hearings

38 First Select Committee Hearing Presenters: Secretary John Laird Executive Director of OPC Cat Kuhlman Academics and Researchers Highlights of the first hearing

39 Courtesy of Becky Smyth, Presentation to Select Committee Hearing

40 Property at Risk nearly $100 billion worth of property (in year 2000 dollars) Courtesy of Dr. Peter Gleick of the Pacific Institute, Presentation to Select Committee Hearing

41 Stinson Beach 50cm Sea Level Rise sea level rise only sea level rise + annual storm Courtesy of Dr. Patrick Barnard, Presentation to Select Committee Hearing

42 NOAA s Sea Level Rise and Coastal Flooding Impacts Viewer Courtesy of Becky Smyth, Presentation to Select Committee Hearing

43 Stanford University s CA Climate Adaptation Poll This survey question examined attitudes toward preparation, which h showed that CA public overwhelmingly supports preparing now for the impacts of global warming Courtesy of Meg Caldwell, Presentation to Select Committee Hearing

44 Second Select Committee Hearing Impact of Sea Level Rise in CA s Coastal Agriculture, Fishing & Aquaculture Industry, & Tourism Held in Half Moon Bay on July 24, 2013 Three panels Discussed in-depth three affected industries

45 Second Select Committee Hearing Presenters: Industry from Agriculture, Fishing, & Aquaculture Representatives from CA Department of Water Resources and CA State Parks Academics and Researchers Highlights of the second hearing

46 Additional Saltwater Intrusion Induced by Sea Level Rise Courtesy of Mary Scruggs, Presentation to Select Committee Hearing

47 Electrical Resistivity Image saltwater freshwater Courtesy of Dr. Rosemary Knight, Presentation to Select Committee Hearing

48 Global Ocean ph Has Declined Courtesy of Dr. Gretchen Hofmann, Presentation to Select Committee Hearing

49 Illustrative scenario of 55 inches of sea level rise and a predicted 100 year storm at Torrey Pines State Beach. As such, it presents one of a range of possible future scenarios for 2100 when compared with current conditions. Background image layer courtesy of Bing; 100 year storm event layer (also known as 100 year flood) courtesy of the Pacific Institute.

50 Third Select Committee Hearing Impact of Sea Level Rise in CA s Infrastructure Joint hearing with Select Committee on Ports Will be held in Long Beach on Oct. 25, 2013 Three panels Will discuss in-depth affected structures and facilities

51 Fourth Select Committee Hearing Will be held in State Capitol on Nov. 18, 2013 Provide recap of hearings and discuss adaptation strategies and responses: What has the select committee learned? Are the agencies prepared to respond? If not, what authority do agencies need?

52 Next Steps After November hearing, develop a report to the State Assembly Include findings from the four hearings Provide recommendations including, legislative, budget and administrative responses This will be a Select Committee of action Research and hearings first part of the equation Two year plan for select committee First year examine impacts of sea level rise through research and hearings, second year run legislation and act on our recommendations

53 Acknowledgments Assemblyman Gordon, Chair of Select Committee Select Committee Members Hearing Presenters Thank you Ellen Hou

54 Questions?

55 How Far Is Too Far? Conditions of Approval and Takings: Commission Precedents and Court Precedents Track I - Maurice Braun Ballroom Presented by: Ralph Faust

56 Questions?

57 Current Coastal Policies on Permitting Sea Walls & Other Shoreline Protective Devices Track II - Charles Reiffel Room Presented by: Greg Sanders and Jamee Jordon Patterson

58 Public Resources Code section Shoreline protection devices (seawalls, revetments etc.) that alter natural shoreline processes shall be permitted: AND When required to serve coastal dependent uses When required to protect existing structures in danger from erosion When required to protect public beaches in danger from erosion When designed to eliminate or mitigate adverse impacts on shoreline sand supply

59 Public Resources Code section New development shall: Minimize risks to life and property in areas of high geologic, flood and fire hazard Assure stability and structural integrity Neither create nor contribute significantly to erosion, geologic instability or destruction of the site or surrounding area Or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs

60 Cal. Code Regs., tit. 14 section Repair and maintenance requiring a permit includes: Any method of repair or maintenance of shoreline protection that involves: Substantial alteration of the foundation of the protective work The placement of rip rap, sand berms or other solid materials on the beach or in coastal waters The replacement of 20 % or more of the structure s materials with different materials The presence of mechanized equipment on the beach, bluff, environmentally sensitive areas or within 20 feet of coastal waters

61 Cases of interest involving shoreline protection Barrie v. California Coastal Commission (1987) 196 Cal.App.3d 241 Property owners in Del Mar constructed seawalls under emergency permit. Seawalls located 15 feet onto public beach. Staff warned seawalls might need to be relocated. Commission required seawalls be removed and reconstructed on-or as close as possible to-private property. Commission required property owners to pay rent for seawalls located on public beach. Court of Appeal upheld Commission decision.

62 Del Mar beach post seawall relocation California Coastal Records Project 2010

63 Ocean Harbor House Homeowners Ass n v. California Coastal Commission (2008) 163 Cal.App.4 th 215 Commission approved permit for seawall conditioned with $5.3 million mitigation fee. Court of Appeal upheld Commission decision. Nexus = loss of recreational resources and fee to develop substitute recreational opportunities. Mitigation fee = roughly proportional to lost recreation use. Commission not limited to conditions re sand supply

64 Ocean Harbor House Pre-approved Wall From the Monterey County Weekly, 2004

65 Condos as of 2010 California Coastal Records Project

66 Recent policy developments Waiver of future shoreline protection for new development Based on Limiting term of shoreline protection permit Term of years Useful life of structure to be protected Monitoring and maintenance Mitigation fees Lost recreational use Trapped sand Impacts on sand transport

67 Other issues/policy concerns Beach replenishment Climate change and sea level rise Tsunamis Planned retreat Public and private property rights

68 Parting Shot Del Mar Beach 2009

69 Questions?