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SR-10-A (57) ~(/? cue /1"0 '" /,,-;11. 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. If IJ " -I- 41 / t:'J~A-- OCl ~ ~'j; - 1 - 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) . - 2 - 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: - 3 - "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. - 4 -