SR-10-A (57)
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OCT 1 lq~l
MEMORANDUM
DATE:
october 1, 1991
TO:
Mayor and City council
FROM:
Robert M. Myers, city Attorney
Mary H. Strobel, Deputy city Attorney
SUBJECT:
Response to Letters Regarding the Local Coastal Plan
This Memorandum responds to the letter from Kathleen
Schwallie to the city Council dated September 29, 1991, (the
"Schwallie letterll) and a letter received by this office from
Debra Bowen dated September 26, 1991 (the "Bowen letterll)
concerning the Local Coastal Program ("LCP") scheduled for public
hearing at the October I, 1991 City council meetlng.
The Schwallie Letter
With respect to the Schwallie letter, the City Attorney's
Office makes the following responses or recommendations in
response to the enumerated points in the letter:
1.
A. We recommended to the Planning Staff that it
amend POllCY 65 to read exactly as section 30251 of the Coastal
Act.
B. We recommended to the Planning staff that it add
a general policy consistent with section 30250 of the Coastal
Act.
C. We recommended to the Planning Staff that it
amend the LCP to reflect the policy set forth in section 30252 of
the Coastal Act.
D. We recommended to the Planning staff that it add
a policy similar to that suggested in the letter concerning
neighborhood impact from Coastal Zone visitor traffic.
E. Since the terms 11 coastal-dependent development II
and "coastal-dependent liSen are defined in the appendix to the
LCP, and the term "visitor-servlng commercial uses" has been
deleted in Policy 44, we do not recommend any additional changes
to the LCP to address the letter's concern. Terms should be
consistently used, and we have recommended that Planning staff
attempt to ldentify any inconsistencies.
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F. Policies 6 through 17 of the LCP address public
access goals. specifically, policies 6,7, and 8 are
substantially similar to Coastal Act sections 30210, 30212.5, and
30211 quoted in the letter. A separate definition of "public
access" does not appear necessary.
G. We recommended that Planning staff add a general
policy similar to that suggested concerning protection of the
Coastal Zone environment and Vlews.
None of the Coastal Zone in Santa Monica has been
designated a "sensitive coastal resource area" thus no changes
are necessary to comply with 30502 of the Coastal Act.
Although the suggested change to Policy 53 appears too
restrictive, we recommended to the Planning staff that a line be
added to Policy 53 pointing out that development west of the 1921
mean high tide line is subject to the Santa Monica Bay Ordinance
of 1973.
H.
1. This is a factual dispute to which we
recommended that the Planning Department respond.
2. Whether a new policy concerning use levels
on PCH should be added following Policy 20 is a policy question
for the city Council. We do not believe it is a legal
requirement that such a policy be added.
I. Whether the shuttle system discussed in Policy 30
should be amended as suggested is a policy question for the city
Council.
Policy 73 requires an assessment of adequacy of parking in
the Bayside Improvement District as part of the review of each
development permit. The suggested changes to Policy 73 do not
appear to be legally mandated.
J. Whether the LCP should be amended to delete all
upzoning in the coastal zone is a policy question for the city
Council.
2. Public Resources Code Section 21080.9 specifically
exempts the activities and approvals by a local government
necessary for the preparation and adoption of a local coastal
program from the requirements of the California Environmental
Quali ty Act (t1CEQA"). There ~s no requirement that the LCP
itself contain alternatives or mitigation measures, contrary to
the contentions in the letter. Reference in the LCP to
individual EIRs prepared with respect to zoning ordinance changes
and particular projects were informational only and not meant to
satisfy CEQA obligations with respect to the LCP (since there are
none) .
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Whatever CEQA obligations the California Coastal Commission
may have pursuant to Public Resources Code section 21080.9 when
reviewing and certifying the LCP are not within the city's
control or jurisdiction. The city has complied with the steps
set forth in the Coastal Act for preparation and submittal of a
local coastal program.
Concerning the LCP's reference to projects which have not
yet been approved by the Ci ty Council, such as future civic
Center development, it is not yet clear whether the California
Coastal Commission will require an amendment to the LCP to
accommodate these projects should they be adopted by the city.
3. The city's Attorney's office shares the author's
concern regarding the Attorney General Opinion issued in 1987
concerning local coastal programs (70 Ops. Atty. Gen. 220
9-10-87) (the "Opl.nion"). In a recent memorandum to the Planning
Department, this office advised the Department concerning the the
Opinion, which made the following conclusions:
1. A city or county, by ordinance,
including those adopted by referendum or
initiative, may not lawfully authorize a use of
land in the coastal zone which is not permitted
by a local coastal program or a land use plan
certified by the California Coastal Commission
without approval of the commission.
2. A city or county may not lawfully
prohibit a use of land in the coastal zone which
is permitted by a local coastal program or land
use plan certified by the California Coastal
Commission by ordinance, including those adopted
by referendum or initiative, without the approval
of the Commiss1on.
The potential impact of the opinion is great. Had a local
Coastal Program been certified, many City actions including the
downzoning of Ocean Park and North of Wilshire neighborhoods and
the adoption of the specific plan for the Third Street Promenade
area would have been subj ect to Coastal Commission approval.
Additionally, the abl.lity of the people to legislate by
initiative is severely limited by this Opinion. For example,
Proposition S might have been subject to Coastal Commission
approval had the LCP been adopted prior to its adoption.
Although it is understandable that the City cannot approve
projects that do not meet the polic1es of the Coastal Act, we do
not believe it should be limited in the types of projects it can
prohibit. We therefore recommended that policies protecting the
City's land use authorl.ty be added to the LCP. These policies
now appear in the LCP and read as follows:
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"80.
1 imi ts the
people to
initiative,
prohibit or
Nothing in the Local Coastal Program
authority of the City Councilor the
legislate by ordinance, resolution,
referendum, or charter amendment to
limit any type of development.
81. Whenever the Local Coastal Program or
implementing documents set forth development
standards, the developments standard shall not be
considered entitlements but shall be considered
the maximum development intensity that may be
authorized. In any administrative proceeding,
development standards may be reduced in order to
advance these goals of this LUP. Nothing in the
Local Coastal Program limits the authority of the
city councilor the people to legislate by
ordinance, resolution, initiative, referendum, or
charter amendment to reduce any development
standard."
It is not clear that the Coastal Commission will accept
these new policies, but we recommend that the City not surrender
its land use authority to the California Coastal Commission.
The Bowen Letter
The Bowen letter outlines the concerns of Sharon Jacquith
concerning the implementation of Proposition S in the LCP,
specifically, in the Plan's accommodation of the Natural Elements
Sculpture Park on the beach. The letter contends that sculptures
on the beach are permissible under Propos1tion S only if they are
a specifically delineated Upermitted use. II Section 9035.2,
enacted through Proposition S, lists as permitted uses, in
relevant part: "open space, pUblic beaches, parks, incidental
park structures, gardens, playgrounds, recreational buildings,
recreational area.1I
The Bowen letter concludes that the sculptures on the beach
would not fall into one of these categories. We have concluded
that the sculptures could be considered as "incidental park
structures," and are therefore not prohibited by Proposition S.
Alternatively, sculptures do not constitute a IIland use" and
therefore the sections of Propos1tlon S delineating permitted and
prohibited lIuses" are irrelevant.
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