Attachment 3 - Appeal of Planning Commission Decision, Received September 20, 2021ATTACHMENT 3
EXHIBITS
Exh.# Item
1 Town of Los Gatos Lot Merger Ordinance (Sec 29.10.070)
2 Sub Division Maps Act Gov Code 66451.11
3 Requirements of the Development Review Committee
(Sec. 29.20.745)
4 Sierra Club vs Napa County Superior Court Ruling on Lot
Line Adjustment for Sequential Lots.
5 Town Lot Line Adjustment Procedure Handout.
6 CEQA Categorical Exemption Class 5, Guidelines Section
15305 (minor alterations in land use limitations).
7 List of CEQA Exemption Types
8 City of Santa Barbara criteria for Environmental Review
9 17200 Los Robles Way Average Slope Calculations
10 Required Findings For 17200 Los Robles Way
11 Links to other CA Town and County Lot Line Adjustment
Ordinances:
a. Santa Cruz County
b. Napa County
c. Saratoga
d. Laguna Beach
e. Sonoma County
f. City of Fillmore
g. Marin County
12 Burke Lot Line Adjustment- Big Sur
13 Subdivision Maps Act Gov Code 66412(d)
14 Santa Clara Count Fire Department Requirements for
driveways >150ft.
15 Non-Buildable Area of APN 532-36-077 outside the
LRDA
16 Berkeley Merger of Two Parcels
17 Attached Sierra Club vs Napa County Highlighted PDF
18 Thompson Title Deed for 17200 Los Robles Way showing
acknowledgement of the Thompson/Clifford Quit Claim to
Harding Ave ROW (Parcel 4 description)
Exhibit 1: Town of Los Gatos Lot Merger Ordinance
Sec. 29.10.070. - Lot merger.
(a) A parcel of land does lawfully exist separately from other land and is a lot when the
parcel meets each of the following criteria:
(1) Comprises at least five thousand (5,000) square feet in area.
(2) Was created in compliance with applicable laws and ordinances in effect at
the time of its creation.
(3) Meets current standards for sewage disposal and domestic water supply.
(4) Meets slope stability standards.
(5) Has legal access which is adequate for vehicular and safety equipment access
and maneuverability.
(6) Development of the parcel would create no health or safety hazards.
(7) The parcel would be consistent with the applicable general plan and any
applicable specific plan, other than minimum lot size or density standards.
(8) No structures are built over a common property line which is shared with
another parcel under the same or substantially the same ownership.
(b) Any parcels under the same or substantially the same ownership that do not meet
the criteria listed above shall be considered merged. In addition, no parcel shall be
modified through a lot line adjustment procedure in order to meet the criteria listed
above.
(Ord. No. 1316, § 3.10.010, 6-7-76; Ord. No. 1337, 11-1-76; Ord. No. 1432, 6-4-79; Ord. No.
1438, 8-6-79; Ord. No. 1756, § I, 8-1-88)
Exhibit 2: Subdivision Maps Act Gov Code 66451.11
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode
=GOV§ionNum=66451.11
GOVERNMENT CODE - GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by
Stats. 1974, Ch. 1536. )
DIVISION 2. SUBDIVISIONS [66410 - 66499.38] ( Division 2 added by Stats. 1974, Ch. 1536. )
CHAPTER 3. Procedure [66451 - 66472.1] ( Chapter 3 added by Stats. 1974, Ch. 1536. )
ARTICLE 1.5. Merger of Parcels [66451.10 - 66451.24] ( Article 1.5 added by Stats. 1983, Ch. 845,
Sec. 2. )
66451.11.
A local agency may, by ordinance which conforms to and implements the
procedures prescribed by this article, provide for the merger of a parcel or unit with
a contiguous parcel or unit held by the same owner if any one of the contiguous
parcels or units held by the same owner does not conform to standards for
minimum parcel size, under the zoning ordinance of the local agency applicable to
the parcels or units of land and if all of the following requirements are satisfied:
(a) At least one of the affected parcels is undeveloped by any structure for which a
building permit was issued or for which a building permit was not required at the
time of construction, or is developed only with an accessory structure or accessory
structures, or is developed with a single structure, other than an accessory
structure, that is also partially sited on a contiguous parcel or unit.
(b) With respect to any affected parcel, one or more of the following conditions
exists:
(1) Comprises less than 5,000 square feet in area at the time of the
determination of merger.
(2) Was not created in compliance with applicable laws and ordinances in
effect at the time of its creation.
(3) Does not meet current standards for sewage disposal and domestic water
supply.
(4) Does not meet slope stability standards.
(5) Has no legal access which is adequate for vehicular and safety equipment
access and maneuverability.
(6) Its development would create health or safety hazards.
(7) Is inconsistent with the applicable general plan and any applicable
specific plan, other than minimum lot size or density standards.
The ordinance may establish the standards specified in paragraphs (3) to (7),
inclusive, which shall be applicable to parcels to be merged.
This subdivision shall not apply if one of the following conditions exist:
(A) On or before July 1, 1981, one or more of the contiguous parcels or units of
land is enforceably restricted open-space land pursuant to a contract, agreement,
scenic restriction, or open-space easement, as defined and set forth in Section 421
of the Revenue and Taxation Code.
(B) On July 1, 1981, one or more of the contiguous parcels or units of land is
timberland as defined in subdivision (f) of Section 51104, or is land devoted to an
agricultural use as defined in subdivision (b) of Section 51201.
(C) On July 1, 1981, one or more of the contiguous parcels or units of land is
located within 2,000 feet of the site on which an existing commercial mineral
resource extraction use is being made, whether or not the extraction is being made
pursuant to a use permit issued by the local agency.
(D) On July 1, 1981, one or more of the contiguous parcels or units of land is
located within 2,000 feet of a future commercial mineral extraction site as shown
on a plan for which a use permit or other permit authorizing commercial mineral
resource extraction has been issued by the local agency.
(E) Within the coastal zone, as defined in Section 30103 of the Public Resources
Code, one or more of the contiguous parcels or units of land has, prior to July 1,
1981, been identified or designated as being of insufficient size to support
residential development and where the identification or designation has either (i)
been included in the land use plan portion of a local coastal program prepared and
adopted pursuant to the California Coastal Act of 1976 (Division 20 of the Public
Resources Code), or (ii) prior to the adoption of a land use plan, been made by
formal action of the California Coastal Commission pursuant to the provisions of the
California Coastal Act of 1976 in a coastal development permit decision or in an
approved land use plan work program or an approved issue identification on which
the preparation of a land use plan pursuant to the provisions of the California
Coastal Act is based.
For purposes of paragraphs (C) and (D) of this subdivision, “mineral resource
extraction” means gas, oil, hydrocarbon, gravel, or sand extraction, geothermal
wells, or other similar commercial mining activity.
(c) The owner of the affected parcels has been notified of the merger proposal
pursuant to Section 66451.13, and is afforded the opportunity for a hearing
pursuant to Section 66451.14.
For purposes of this section, when determining whether contiguous parcels are held
by the same owner, ownership shall be determined as of the date that notice of
intention to determine status is recorded.
(Amended by Stats. 1995, Ch. 162, Sec. 1. Effective January 1, 1996.)
Exhibit 3: Requirements of the Development Review Committee
Sec. 29.20.745. - Development Review Committee.
The Development Review Committee shall:
(1) Regularly review and make recommendations to the Planning Commission
concerning the determination of all matters which come before the Planning
Commission except zoning ordinance amendments, zone changes (not including
rezoning to PD), general plan adoptions and amendments, specific plan adoptions and
amendments, and capital improvement plans.
(2) Review and make recommendations to the Council concerning community-oriented
bulletin boards and kiosks proposed to be erected on public property.
(3) May on its own motion review and make recommendations concerning matters not
assigned to it.
(4) Reserved.
(5) Determine and issue zoning approval for the storage of hazardous materials as
provided in division 1 of article VII of this chapter.
(6) Determine appropriate screening (fencing, landscaping or a combination) for
hazardous materials storage sites as provided in division 1 of article VII of this chapter.
(7) Determine and issue zoning approval for grading permits as provided in section
29.10.09045(b) and (c) of this chapter.
(8) Reserved.
(9) Determine and issue zoning approval for lot line adjustments and lot mergers.
(10) Reserved.
(11) Under the provisions of section 29.10.070 of this chapter and section 66424.2 of the
Subdivision Map Act, determine whether lots have merged.
Exhibit 4: Sierra Club vs Napa County Superior Court Ruling on Lot
Line Adjustment for Sequential Lots. (See highlighted sections in attached
pdf)
Sierra-Club-v.-Napa-County-Board-of-Supervisors.pdf
Exhibit 5: Town Lot Line Adjustment Procedure Handout.
This procedure cannot be used because of State Law SMA 66451.11 stating
lots meet merger criteria. Building on APN 532-36-076 is derelict. APN 532-
36-077 is land-locked due to quit claim deeds signed in 1978 and has no
frontage. Is non-conforming.
https://www.losgatosca.gov/DocumentCenter/View/348
Exhibit 6: CEQA Categorical Exemption Class 5, Guidelines Section
15305 (minor alterations in land use limitations).
Cal. Code Regs. tit. 14 § 15305
Section 15305 - Minor Alterations in Land Use Limitations
Class 5 consists of minor alterations in land use limitations in areas with an average slope of less than 20%,
which do not result in any changes in land use or density, including but not limited to:
(a) Minor lot line adjustments, side yard, and set back variances not resulting in the creation of any new
parcel;(b) Issuance of minor encroachment permits;(c) Reversion to acreage in accordance with the
Subdivision Map Act.
Exhibit 7: List of CEQA Exemption Types
https://sfplanning.org/list-ceqa-exemption-types
Categorical Exemptions from the California Environmental Quality Act
(CEQA)
The California Environmental Quality Act (CEQA) and the Guidelines for implementation of
CEQA adopted by the Secretary of the California Resources Agency require that local agencies
adopt a list of categorical exemptions from CEQA. Such list must show those specific activities
at the local level that fall within each of the classes of exemptions set forth in Article 19 of the
CEQA Guidelines, and must be consistent with both the letter and the intent expressed in such
classes.
In the list that follows, the classes set forth in CEQA Guidelines Sections 15301 - 15332 are
shown in bold italics, with further elaboration or explanation for applying these exemptions in
San Francisco shown in normal upper- and lower-case type. The Secretary of the California
Resources Agency has determined that the projects in these classes do not have significant
effect on the environment, and therefore are categorically exempt from CEQA. The following
exceptions, however, are noted in the State Guidelines.
* CLASS 5: MINOR ALTERATIONS IN LAND USE LIMITATIONS
Class 5 consists of minor alterations in land use limitations in areas with an average slope of less than
20%, which do not result in any changes in land use or density, including but not limited to:
(a) Minor lot line adjustments, side yard and setback variances not resulting in the creation of any new
parcel.
This item covers only the granting of lot line adjustments and variances, not construction that
could occur as a result of such approvals. Setback variances include both front and rear yard
variances and modification or abolition of legislated setback lines. Class 15 may also apply for
minor land divisions into four or fewer parcels when no variance is required.
CLASS 15: MINOR LAND DIVISIONS
Class 15 consists of the division of property in urbanized areas zoned for residential, commercial, or
industrial use into four or fewer parcels when the division is in conformance with the General Plan and
zoning, no variances or exceptions are required, all services and access to the proposed parcels to local
standards are available, the parcel was not involved in a division of a larger parcel within the previous
two years, and the parcel does not have an average slope greater than 20 percent.
Only land divisions into four or fewer parcels requiring no variances from the City Planning
Code and no exceptions from the San Francisco Subdivision Ordinance are covered by this
Class.
Exhibit 8: City of Santa Barbara criteria for Environmental Review
https://www.santabarbaraca.gov/SBdocuments/Advisory_Groups/Staff_Hearing_Officer/
Archive/2018_Archives/03_Staff_Reports/2018_06_20_June_20_2018_Item_IV.D_125-
127_Eucalyptus_Hill_Circle_Staff_Report.pdf
Exhibit 9 Los Robles Way Average Slope Calculations:
Exhibit 10 Required Findings For 17200 Los Robles Way:
(No development proposed yet Town is able to make these affirmative findings without
review of proposed development?)
PLANNING COMMISSION – September 8, 2021
REQUIRED FINDINGS FOR:
17200 Los Robles Way
Subdivision Application M-20-012
Consider an Appeal of a Development Review Committee Decision Approving a Lot Line
Adjustment Between Three Adjacent Lots on Properties Zoned R-1:20. APNs 532-36-075,
-076, and -077. PROPERTY OWNERS: Daren Goodsell, Trustee and Mark Von Kaenel.
APPLICANT: Tony Jean. APPELLANTS: Alison and David Steer, Terry and Bob Rinehart,
Nancy and Jim Neipp, Gary and Michelle Gysin, and Gianfranco and Eileen De Feo.
PROJECT PLANNER: Ryan Safty.
FINDINGS
Required findings for CEQA:
■ The project is not subject to the California Environmental Quality Act pursuant to the adopted
Guidelines for the Implementation of CEQA, Section 15061(b)(3): A project is exempt from CEQA
when the activity is covered by the common sense exemption that CEQA only applies to projects
which have the potential for causing a significant effect on the environment. Where it can be seen
with certainty that there is no possibility that the activity in question will have a significant effect on
the environment, the activity is not subject to CEQA. The project proposes to modify lot lines
between three legal, adjacent parcels. No development is proposed at this time.
Required findings to deny a Subdivision application:
■ As required by Section 66474 of the State Subdivision Map Act the map shall be denied if any of
the following findings are made: None of the findings could be made to deny the application.
Instead, the Planning Commission makes the following affirmative findings:
a. That the proposed map is consistent with all elements of the General Plan.
b. That the design and improvement of the proposed subdivision is consistent with all elements of
the General Plan.
c. That the site is physically suitable for the type of development.
d. That the site is physically suitable for the proposed density of development.
e. That the design of the subdivision and the proposed improvements are not likely to cause
substantial environmental damage nor substantially and avoidably injure fish or wildlife or their
habitat.
f. That the design of the subdivision and type of improvements is not likely to cause serious public
health problems.
g. That the design of the subdivision and the type of improvements will not conflict with easements,
acquired by the public at large, for access through or use of, property within the proposed
subdivision.
EXHIBIT 11 Links to other CA Town and County Lot Line Adjustment
Ordinances:
A) Santa Cruz County
https://www.sccoplanning.com/LinkClick.aspx?fileticket=qoSS8epYHGU%3D&tabid=1097
https://library.municode.com/ca/napa_county/codes/code_of_ordinances?nodeId=TIT17SU_CH
17.46LOLIAD_17.46.030LOLIADPPDECO
B) Napa County Lot Line Adjustment Ordinance
https://library.municode.com/ca/napa_county/codes/code_of_ordinances?nodeId=TIT17SU_CH
17.46LOLIAD_17.46.030LOLIADPPDECO
C. The county surveyor shall tentatively approve the lot line adjustment if it meets the
following standards at the time the filed application is deemed complete, provided
however that the county surveyor may impose conditions as part of such tentative
approval to ensure that the standard established by subsection (E) of Section
17.46.060 will be satisfied prior to recordation of the deed(s) consummating the lot line
adjustment. Applications complying with the following standards are deemed to
conform to the county general plan, any applicable specific plan, and county zoning
and building ordinances:
1. The lot line adjustment will result in the transfer of property between at least two,
but no more than four, existing adjoining legal parcels. Parcels are adjoining only if
each of the parcels proposed for adjustment abuts at least one of the other parcels
involved;
2. A greater number of parcels than originally existed will not result from the lot line
adjustment;
3. A nonbuildable parcel will not be made buildable by the lot line adjustment. For
purposes of this standard, a lot is considered buildable if it meets all three of the
following criteria:
a. The parcel contains a minimum two thousand four hundred square feet of net lot
area as defined in Section 17.02.350;
b. The parcel has existing access rights to a public street as defined in Section 17.02.020;
and
c. The parcel contains a building site, as defined in Section 17.02.080, which is a
minimum of twenty-five feet wide and twenty-five feet deep;
17.02.080 - Building site.
"Building site" means a site on a lot which is suitable for construction of a main
building and is reasonably free from geotechnical hazards such as settlement,
landsliding, mudsliding and flood hazards, and to which there is reasonable
access.
(Ord. 854 § 2 (part), 1987: prior code § 11602.2 (b))
C) Town of Saratoga
https://library.municode.com/ca/saratoga/codes/code_of_ordinances?nodeId=CH14SU_ART14-
50LOLIAD
14-65.010 - Requirements for parcel merger. | Code of Ordinances | Saratoga, CA | Municode Library
D) Laguna Beach
http://qcode.us/codes/lagunabeach/view.php?topic=21-21_08-21_08_030
E) Sonoma County
https://sonomacounty.ca.gov/PRMD/Instructions-and-Forms/PJR-030-Lot-Line-Adjustment/
F) CITY OF FILLMORE Lot Line Adjustment Criteria
https://www.fillmoreca.com/home/showpublisheddocument/6559/637245227149470000
G) Marin County Lot Merger Ordinance
https://library.municode.com/ca/marin_county/codes/municipal_code?nodeId=TIT22DECO_ARTVISU_
CH22.92MEPA_22.92.020REME
22.92.020 - Requirements for Merger.
On or after January 1, 1984, when any one of two or more contiguous parcels or units of
land, which are held by the same owner or owners, does not conform to the minimum
lot area requirements of the applicable zoning district or the minimum lot area
requirements based on lot slope (Section 22.82.050 - Hillside Subdivision Design), the
contiguous parcels shall merge if required by Subsection A of this Section (Merger
Required), except where otherwise provided by Subsection B of this Section
(Exemptions from Merger Requirements). Such mergers may be initiated either by the
County or by the property owner.
A. Merger required. Contiguous, nonconforming parcels held by the same owner or
owners shall merge if both of the following requirements are satisfied:
1.At least one of the affected parcels is undeveloped by any structure for which a
Building Permit was issued or for which a Building Permit was not required at the time
of construction, or is developed only with an accessory structure or accessory
structures, or is developed with a single structure, other than an accessory structure,
that is also partially sited on a contiguous parcel or unit of land; and
2. With respect to any affected parcel, one or more of the following conditions exist:
a. Comprises less than 5,000 square feet in area at the time of the determination of
merger;
b. Was not created in compliance with applicable laws and ordinances in effect at the
time of its creation;
c. Does not meet current standards for sewage disposal in Title 18 (Sewers) of the
County Code;
d.Does not meet current standards for domestic water supply in Title 7 (Health and
Sanitation) of the County Code;
e. Does not meet slope stability standards. A parcel will be deemed to not meet slope
stability standards if more than 50 percent of its gross area is located within slope
stability zone 3 or 4 as shown on the latest slope stability maps on file with the Agency;
f.Has no legal access which is adequate for vehicular and safety equipment access and
maneuverability. The standards of access shall be those contained in Title
24 (Improvement and Construction Standards) of the County Code;
g. Its development would create health or safety hazards; or
h. Is inconsistent with the Marin Countywide Plan, the Local Coastal Plan or any
applicable Community Plan or Specific Plan, other than minimum lot size or density
standards.
For purposes of determining whether contiguous parcels are held by the same owner,
ownership shall be determined as of the date that the Notice of Intent to Determine
Status is recorded in compliance with Section 22.92.040 (Notice of Intent to Determine
Status).
Exhibit 12: Burke Lot Line Adjustment- Big Sur
https://documents.coastal.ca.gov/reports/2009/9/W19a-9-2009.pdf
“The LUP contains a policy that encourages lot line adjustments when no
new developable lots are created and when plan policies are better met
through the adjustment. In other words, a lot line adjustment must not take
unbuildable parcels and make them buildable, and the new lot configuration
must improve the potential development’s consistency with the LUP. This
emphasis on only encouraging lot line adjustments when they would
facilitate less and more sensitive development is consistent with the LCP’s
strong policy to minimize development in Big Sur. The three existing Burke
parcels contain numerous constraints that would preclude them from being
deemed buildable under the LCP’s guidelines, including 30% or greater
average slopes, sensitive riparian corridor habitat, and substandard sizes
relative to minimum parcel size requirement”
Exhibit 13: SMA Gov Code 66412(d).
(Irrelevant due to APN 532-36-077 meeting criteria for merger.)
GOVERNMENT CODE – GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch.
1536. )
DIVISION 2. SUBDIVISIONS [66410 - 66499.38] ( Division 2 added by Stats. 1974, Ch. 1536. )
CHAPTER 1. General Provisions and Definitions [66410 - 66424.6] ( Chapter 1 added by Stats. 1974, Ch.
1536. )
ARTICLE 1. General Provisions [66410 - 66413.5] ( Article 1 added by Stats. 1974, Ch. 1536. )
66412.
This division shall be inapplicable to any of the following:
(a) The financing or leasing of apartments, offices, stores, or similar space within apartment
buildings, industrial buildings, commercial buildings, mobilehome parks, or trailer parks.
(b) Mineral, oil, or gas leases.
(c) Land dedicated for cemetery purposes under the Health and Safety Code.
(d) A lot line adjustment between four or fewer existing adjoining parcels, where the land taken
from one parcel is added to an adjoining parcel, and where a greater number of parcels than
originally existed is not thereby created, if the lot line adjustment is approved by the local
agency, or advisory agency. A local agency or advisory agency shall limit its review and
approval to a determination of whether or not the parcels resulting from the lot line adjustment
will conform to the local general plan, any applicable specific plan, any applicable coastal plan,
and zoning and building ordinances. An advisory agency or local agency shall not impose
conditions or exactions on its approval of a lot line adjustment except to conform to the local
general plan, any applicable specific plan, any applicable coastal plan, and zoning and building
ordinances, to require the prepayment of real property taxes prior to the approval of the lot line
adjustment, or to facilitate the relocation of existing utilities, infrastructure, or easements. No
tentative map, parcel map, or final map shall be required as a condition to the approval of a lot
line adjustment. The lot line adjustment shall be reflected in a deed, which shall be recorded. No
record of survey shall be required for a lot line adjustment unless required by Section 8762 of the
Business and Professions Code. A local agency shall approve or disapprove a lot line adjustment
pursuant to the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of
Division 1).
Exhibit 14: Santa Clara Count Fire Department Requirements for
driveways >150ft.
17200 Los Robles Way does not have an adequate turnaround for emergency vehicle access.
https://www.sccfd.org/images/documents/fire_prevention/standards/S
DS_D-1_DrivewaysTurnaroundsTurnOuts_04272021_1.pdf
Exhibit 15: Non Buildable Area of APN 532-36-077 outside the LRDA
(note APN error on the surveyor drawings)
STATE OF CALIFORNIA – NATURAL RESOURCES AGENCY ARNOLD SCHWARZENEGGER, GOVERNOR
CALIFORNIA COASTAL COMMISSION
CENTRAL COAST DISTRICT OFFICE
725 FRONT STREET, SUITE 300
SANTA CRUZ, CA 95060
PHONE: (831) 427-4863
FAX: (831) 427-4877
WEB: WWW.COASTAL.CA.GOV
W19a
Appeal filed: 1/31/2007
49th day: waived
Staff report prepared: 8/19/2009
Staff report prepared by: Katie Morange
Staff report approved by: Dan Carl
Hearing date: 9/9/2009
APPEAL STAFF REPORTSUBSTANTIALISSUEDETERMINATION& DE NOVO HEARING
Appeal number...............A-3-MCO-07-004, Burke Lot Line Adjustment
Applicant.........................Timothy and Dana Burke
Appellants .......................Commissioners Sara Wan and Meg Caldwell
Local government ..........Monterey County
Local decision .................Approved by the Monterey County on December 14, 2006 (Monterey County
Coastal Development Permit (CDP) Application Number PLN060189).
Project location ..............Three undeveloped parcels (APNs 418-011-041, 418-011-042, and 418-011-
043) accessed via private road from Palo Colorado Road, south of Twin Peaks
and immediately west of the Ventana Wilderness of the Los Padres National
Forest, Big Sur, Monterey County.
Project description .........Lot line adjustment to reconfigure three undeveloped parcels to result in three
lots measuring 6.69 acres, 7.58 acres and 39.92 acres.
File documents................Administrative record for Monterey County CDP Number PLN060189;
Correspondence Submitted by the Applicant; Monterey County certified
Local Coastal Program (LCP), including Big Sur Coast Land Use Plan (LUP)
and Coastal Implementation Plan (IP).
Staff recommendation ...Substantial Issue Exists; Deny Coastal Development Permit
A.Staff Recommendation
1. Summary of Staff Recommendation
On December 14, 2006, the Monterey County Minor Subdivision Committee approved a CDP for a lot
line adjustment among three undeveloped parcels resulting in three reconfigured parcels remaining at
the existing sizes of 6.69 acres, 7.58 acres and 39.92 acres. The parcels are located immediately west of
the Ventana Wilderness area of the Los Padres National Forest and south of Twin Peaks in northern Big
Sur. The Appellants contend that the lot line adjustment would convert currently unbuildable parcels to
buildable parcels and result in the creation of parcels that do not meet the minimum density standard,
thereby placing greater demands on limited water supplies and contribute to cumulative adverse impacts
California Coastal Commission
A-3-MCO-07-004 (Burke LLA) stfrpt 9.9.2009 hrg
Appeal A-3-MCO-07-004
Burke Lot Line Adjustment
Page 2
on traffic and circulation, subsequently adversely affecting public access and recreation along the Big
Sur coast. Staff recommends that the Commission find that the appeal raises a substantial issue
and take jurisdiction over the CDP for the project.
The primary land use planning objective for Big Sur, as stated in the Big Sur Land Use Plan, is to
minimize development of the Big Sur coast in order to preserve it as a scenic rural area. The LUP
acknowledges that certain areas of Big Sur are not suitable for full development because of the potential
for resource degradation, and in order to guide and determine where future land use development should
occur, one of the LUP’s development policies (Policy 5.4.2.5) characterizes what constitutes a buildable
parcel. Under this policy, parcels are considered buildable parcels provided that all resource protection
policies can be fully satisfied, there are adequate building areas of less than 30% cross slope, and they
are not merged by other provisions of the LCP.
The LUP contains a policy that encourages lot line adjustments when no new developable lots are
created and when plan policies are better met through the adjustment. In other words, a lot line
adjustment must not take unbuildable parcels and make them buildable, and the new lot configuration
must improve the potential development’s consistency with the LUP. This emphasis on only
encouraging lot line adjustments when they would facilitate less and more sensitive development is
consistent with the LCP’s strong policy to minimize development in Big Sur. The three existing Burke
parcels contain numerous constraints that would preclude them from being deemed buildable under the
LCP’s guidelines, including 30% or greater average slopes, sensitive riparian corridor habitat, and
substandard sizes relative to minimum parcel size requirements. The proposed lot line adjustment also
does not include any elements that would allow for plan policies to be better met beyond what exists
under the current parcel configuration. Although the lot line adjustment could result in shorter access
roads and greater clustering of development than if the parcels were developed in their current
configuration (assuming each of the parcels can be approved for development through the use of waivers
and policy exceptions), all development would still be inconsistent with slope policies, etc. The lot line
adjustment does not offer anything additional to ensure that plan policies are better met, such as a
reduction in potential overall development density, retirement of development credit elsewhere, or
protective easements.
The LCP envisions lot line adjustments as a useful tool for existing buildable parcels (i.e., those parcels
with suitable building, septic, and access road area under 30% slopes, outside the critical viewshed,
outside of ESHA, and consistent with all other LCP requirements) if an adjustment would improve the
resource setting and thereby further the intent of the LCP to protect coastal resources and public access
and recreation. There is no evidence in the LCP that lot line adjustments and resubdivisions were meant
to be a means solely to achieve a more marketable parcel configuration, regardless of existing
constraints. In fact, the LCP is designed to “substantially curtail” new residential development that
could be facilitated through subdivisions or other land intensification mechanisms, such as lot line
adjustments.
Since the purpose of the proposed lot line adjustment is to transform nonresidential lots into buildable
residential lots, it is not a proper use of the LUP’s lot line adjustment tool and it is inconsistent with the
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LCP’s policies designed to minimize residential development. It would undermine the (already very
low) residential buildout assumptions upon which the Big Sur Coast Area LUP was founded.
Accordingly, staff recommends denial of the proposed lot line adjustment. The motions and
resolution on the substantial issue determination and CDP application follow.
2. Staff Recommendation on Substantial Issue
Staff recommends that the Commission determine that a substantial issue exists with respect to the
grounds on which the appeal was filed. A finding of substantial issue would bring the project under the
jurisdiction of the Commission for hearing and action.
Motion. I move that the Commission determine that Appeal Number A-3-MCO-07-004 raises no
substantial issue with respect to the grounds on which the appeal has been filed under Section
30603 of the Coastal Act.
Staff Recommendation of Substantial Issue. Staff recommends a NO vote. Failure of this
motion will result in a de novo hearing on the application, and adoption of the following
resolution and findings. Passage of this motion will result in a finding of No Substantial Issue
and the local action will become final and effective. The motion passes only by an affirmative
vote of the majority of the appointed Commissioners present.
Resolution to Find Substantial Issue. The Commission hereby finds that Appeal Number A-3-
MCO-07-004 presents a substantial issue with respect to the grounds on which the appeal has
been filed under Section 30603 of the Coastal Act regarding consistency with the certified Local
Coastal Program.
3. Staff Recommendation on CDP Application
Staff recommends that the Commission, after public hearing, deny the CDP for the proposed
development subject to the standard and special conditions below.
Motion. I move that the Commission approve Coastal Development Permit Number A-3-MCO-
07-004 pursuant to the staff recommendation.
Staff Recommendation of Approval. Staff recommends a NO vote. Failure of this motion will
result in denial of the coastal development permit and adoption of the following resolution and
findings. The motion passes only by affirmative vote of a majority of the Commissioners present.
Resolution to Deny the Coastal Development Permit. The Commission hereby denies the
coastal development permit on the grounds that the development will not conform with the
policies of the Monterey County Local Coastal Program. Approval of the coastal development
permit would not comply with the California Environmental Quality Act because there are
feasible mitigation measures or alternatives that would substantially lessen the significant
adverse impacts of the development on the environment.
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Report Contents
A. Staff Recommendation...........................................................................................................................1
1. Summary of Staff Recommendation................................................................................................1
2. Staff Recommendation on Substantial Issue....................................................................................3
3. Staff Recommendation on CDP Application...................................................................................3
B. Findings and Declarations .....................................................................................................................4
1. Project Location and Description ....................................................................................................4
2. Monterey County CDP Approval....................................................................................................5
3. Appeal Procedures...........................................................................................................................5
4. Summary of Appeal Contentions.....................................................................................................5
5. Substantial Issue Determination......................................................................................................6
6. Coastal Development Permit Determination...................................................................................7
7. California Environmental Quality Act (CEQA)............................................................................16
C. Exhibits
Exhibit A: Monterey County Final Local Action Notice (Resolution No. 06030)
Exhibit B: Appeal from Commissioners Wan and Caldwell
Exhibit C: Project Location
Exhibit D: Proposed Lot Line Adjustment
Exhibit E: Figure 1 of the Big Sur Coast Land Use Plan
Exhibit F: Slope Density Map of Existing Burke Parcels
Exhibit G: Applicant’s Response to Appeal (including August 20, 2007 Biological Assessment)
B.Findings and Declarations
The Commission finds and declares as follows:
1. Project Location and Description
The project site is located immediately west of the Ventana Wilderness area of the Los Padres National
Forest and south of Twin Peaks in the northern Big Sur area (Exhibit C). Access to the site is provided
via a private, unpaved access road (the “Zufich” road, as referred to by local residents) that extends to
the site from Palo Colorado Road, and continues on toward Twin Peaks. The three existing parcels
(APNs 418-011-041, 418-011-042, and 418-011-043, also known as Lots 17, 18, and 1, respectively) are
undeveloped except for several footpaths on Lot 17 and an old springbox on Lot 18. The three parcels
cover mountainous terrain and range in elevation from approximately 2,250 to 3,000 feet.
The County approval adjusts these three parcels, resulting in three reconfigured parcels remaining at the
existing sizes of 6.69, 7.58 and 39.92 acres, as shown in Exhibit D.
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2. Monterey County CDP Approval
On December 14, 2006, the Monterey County Minor Subdivision Committee approved the proposed
project subject to multiple conditions (see Exhibit A for the County’s staff report, findings and
conditions on the project). The Minor Subdivision Committee’s approval was not appealed locally (i.e.,
to the Board of Supervisors). Notice of the Minor Subdivision Committee’s action on the coastal
development permit (CDP) was received in the Commission’s Central Coast District Office on January
17, 2007. The Commission’s ten-working day appeal period for this action began on January 18, 2007
and concluded at 5pm on January 31, 2007. One valid appeal (see below) was received during the
appeal period.
3. Appeal Procedures
Coastal Act Section 30603 provides for the appeal of approved coastal development permits in
jurisdictions with certified local coastal programs for development that is (1) between the sea and the
first public road paralleling the sea or within 300 feet of the inland extent of any beach or of the mean
high tideline of the sea where there is no beach, whichever is the greater distance; (2) on tidelands,
submerged lands, public trust lands, within 100 feet of any wetland, estuary, or stream, or within 300
feet of the top of the seaward face of any coastal bluff; (3) in a sensitive coastal resource area; (4)
approved by counties, unless it is designated as the principal permitted use under the zoning ordinance
or zoning district map; and (5) any action on a major public works project or energy facility. This
project is appealable because a lot line adjustment is not the principally permitted use in the Watershed
and Scenic Conservation zoning district.
The grounds for appeal under Section 30603 are limited to allegations that the development does not
conform to the standards set forth in the certified LCP and/or the public access policies of the Coastal
Act. Section 30625(b) of the Coastal Act requires the Commission to conduct a de novo coastal
development permit hearing on an appealed project unless a majority of the Commission finds that “no
substantial issue” is raised by such allegations. Under Section 30604(b), if the Commission conducts a
de novo hearing and approves a CDP, the Commission must find that the proposed development is in
conformity with the certified LCP. If approved, Section 30604(c) also requires an additional specific
finding that the development is in conformity with the public access and recreation policies of Chapter 3
of the Coastal Act if the project is located between the nearest public road and the sea or the shoreline of
any body of water located within the coastal zone.
The only persons qualified to testify before the Commission on the substantial issue question are the
Applicant, persons who made their views known before the local government (or their representatives),
and the local government. Testimony from other persons regarding substantial issue must be submitted
in writing. Any person may testify during the de novo stage of an appeal.
4. Summary of Appeal Contentions
The two Commissioner Appellants contend that the lot line adjustment would result in the creation of
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parcels that do not meet the 40-acre minimum density standard and convert currently unbuildable
parcels to buildable parcels, inconsistent with LCP provisions that do not support such a conversion.
The Appellants also contend that the increase in development density facilitated by the lot line
adjustment will place greater demands on limited water supplies and contribute to cumulative adverse
impacts on traffic and circulation, subsequently adversely affecting public access and recreation along
the Big Sur coast. See Exhibit B for the Appellants’ complete appeal document.
5. Substantial Issue Determination
Monterey County’s approval of the Burke lot line adjustment has been appealed to the Coastal
Commission on the basis that: (1) none of the new lots created by the lot line adjustment conform to
LCP minimum parcel size requirements; (2) the adjustment will increase the density of residential
development beyond that which is allowed by the LCP; and (3) the increase in development density
resulting from the lot line adjustment will have cumulative adverse impacts on coastal access and
recreation, water supplies, and the unique coastal resources of the Big Sur coast. Project location and
plans are attached as Exhibits C and D. The County’s Final Local Action Notice (FLAN), approving the
project (Minor Subdivision Committee Resolution Number 06030), is attached to the report as Exhibit
A. The submitted reasons for appeal are attached to this report as Exhibit B.
The Commission finds that the appeal raises a substantial issue regarding the project’s conformance to
the Monterey County certified LCP.
First, the project area is governed by the Big Sur LCP and is within the LCP’s Watershed and Scenic
Conservation (WSC) land use designation and zoning district. Sections 20.17.060.B, 20.145.140.A.6,
and 20.145.140.A.7 of the LCP’s Coastal Implementation Plan (IP) establish a 40-acre minimum parcel
size for such areas. In this case, there is no way the density standard of 40-acre minimum parcel size
could be met, since a minimum of 120 acres is necessary to have three conforming lots. With a
combined total area for the three lots (which currently measure 6.69, 7.58 and 39.92 acres each) of 54.19
acres, conformance with the 40-acre minimum required by IP sections 20.17.060.B, 20.145.140.A.6, and
20.145.140.A.7 can not be accomplished by this lot line adjustment because it results in establishing
three lots that are non-conforming with regards to minimum lot size. This raises a substantial issue.
Second, LUP Policy 5.4.2.8 and IP Section 20.145.140.A.7 prescribe that for steep parcels (those with a
slope of more than 30%) that are designated WSC, the maximum allowable density for development is 1
unit/320 acres. The lot line adjustment approved by the County thus raises a substantial issue of
consistency with the minimum lot size requirements, as well as with Big Sur IP Section
20.145.140.A.1,1 because the project would adjust and facilitate development of three substandard
parcels.
Finally, a substantial issue is also raised by the fact that the existing parcels are not considered buildable
by LCP standards, creating a conflict with Big Sur LUP Policy 5.4.3.H.4 which states that “lot line
1 Section 20.145.140.A.1 of the IP requires the development to conform and be consistent with the development standards of the IP.
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adjustments are encouraged when no new developable lots are created and when plan policies are better
met by this action” (emphasis added). In other words, Policy 5.4.3.H.4 encourages reconfiguration of
buildable parcels so that coastal resources can be better protected, and discourages adjustments that
convert unbuildable parcels into buildable parcels. LUP Policy 5.4.2.5 and IP Section 20.145.140.A.15
state that existing parcels of record are considered buildable when there is adequate building area on less
than 30% slopes and all other resource protection policies and standards can be fully met. The three
Burke parcels consist largely of 30% slopes or greater and contain a riparian corridor (an
environmentally sensitive habitat area) raising LCP conflicts for development of residences, septic
systems, and access roads, and rendering them unbuildable under these LCP standards. As such, the
County approval raises a substantial issue of consistency with Policy 5.4.3.H.4 because it converts what
are unbuildable sub-standard parcels into potentially buildable parcels, and sets a precedent that would
have significant adverse cumulative impacts on the coastal resources of Big Sur (for example, through
increased traffic on Highway 1 during peak visitor times, impacting coastal access and recreation) that
do not advance the policies and intent of the Big Sur LCP.
6. Coastal Development Permit Determination
The standard of review for this application is the Monterey County certified LCP. All Substantial Issue
Determination findings above are incorporated herein by reference.
A. Relevant LCP Provisions
The LCP contains numerous references to and provisions for residential compatibility with sensitive
coastal resources in Big Sur. The LCP also includes provisions that identify when a parcel is considered
buildable in the context of parcel creation and adjustment.
LUP Policy 5.4.2.1. All development and use of the land whether public or private shall conform to
all applicable policies of this plan and shall meet the same resource protection standards.
LUP Policy 5.4.2.5. Existing parcels of record are considered buildable parcels and are suitable
for development of uses consistent with the plan map provided all resource protection policies
can be fully satisfied, there is adequate building areas of less than 30% cross slope, and they are
not merged by provisions elsewhere in this plan.
LUP Policy 5.4.3.H.4. Resubdivisions and lot line adjustments are encouraged when no new
developable lots are created and when plan policies are better met by this action.
LUP Policy 5.4.2.8. It is the policy of Monterey County that lands in excess of thirty percent
cross slope, located east of Highway 1, shall not be developed. Those portions of a parcel in this
area that have a cross slope of thirty percent or more shall receive a density of one dwelling unit
(d.u.) for 320 acres.
The calculation of residential development potential on property east of Highway 1 will be based
on the following slope density formula:
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CROSS SLOPE DWELLING UNIT/ACRE
Under - 15% 1 - 40
15 - 30% 1 - 80
Over - 30% 1 - 320
LUP Policy 3.3.3.A.4 - Setbacks of 150' on each side of the streambank shall be required for all
streams to protect riparian plant communities unless a narrower corridor can be demonstrated
to be sufficient to protect existing vegetation and provide for restoration of previously disturbed
vegetation.
LUP Key Policy 3.2.1. Recognizing the Big Sur coast's outstanding beauty and its great benefit
to the people of the State and Nation, it is the County's objective to preserve these scenic
resources in perpetuity and to promote the restoration of the natural beauty of visually degraded
areas wherever possible. To this end, it is the County's policy to prohibit all future public or
private development visible from Highway 1 and major public viewing areas (the critical
viewshed), and to condition all new development in areas not visible from Highway 1 or major
public viewing areas on the siting and design criteria set forth in Sections 3.2.3, 3.2.4, and 3.2.5
of this plan. This applies to all structures, the construction of public and private roads, utilities,
lighting, grading and removal or extraction of natural materials.
LUP Policy 3.2.3.A.4. New roads, grading or excavations will not be allowed to damage or
intrude upon the critical viewshed. Such road construction or other work shall not commence
until the entire project has completed the permit and appeal process. Grading or excavation
shall include all alterations of natural landforms by earthmoving equipment. These restrictions
shall not be interpreted as prohibiting restoration of severely eroded water course channels or
gullying, provided a plan is submitted and approved prior to commencing work.
Monterey County Code Section 19.09.025 Action on the lot line adjustment.
A. Upon completion of the environmental documents, or finding that the proposed adjustment is
exempt from CEQA the Director of Planning and Building Inspection shall set the matter
before the appropriate decision making body which shall approve, disapprove, or
conditionally approve the lot line adjustment in conformance with standards set forth in the
Subdivision Map Act and this Chapter.
B. A lot line adjustment application may be granted based upon the following findings:
1. That the lot line adjustment is between two (or more) existing adjacent parcels.
2. A greater number of parcels than originally existed will not be created as a result of the
lot line adjustment.
3. The parcels resulting from the lot line adjustment conform to County zoning and building
ordinances.
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IP Section 20.145.140.A.1. All development and land use, whether public or private, shall
conform to and be consistent with the policies of the Big Sur Coast Land Use Plan and with the
development standards of this ordinance. (Ref. Policy 5.4.2.1)
IP Section 20.145.140.A.4. Development shall not be located on slopes of 30% or greater. The
Director of Planning may grant a waiver to the standard upon applicant request and explanation
of the request justification if: a. there is no alternative which would allow development to occur
on slopes of less than 30%; or, b. the proposed development better achieves the resource
protection objectives and policies of the Big Sur Coast Land Use Plan and development
standards of this ordinance.
IP Section 20.145.140.A.5. Development of a parcel shall be limited to density, land use, and
site development standards specific to that parcel’s land use designation, as shown in
Attachment 3.
IP Section 20.145.140.A.6. East of Highway 1, residential development in “RDR” (Rural
Density Residential) and “WSC” (Watershed and Scenic Conservation) zoning districts shall be
allowed at maximum densities established according to the following steps:
a. The maximum density is established by the zoning district in which the parcel lies, e.g.,
“Watershed and Scenic Conservation/40 (CZ)” provides a 40 acre minimum building site.
b. The maximum density is established according to the slope density analysis required for the
project according to Section 20.145.140.A.7.
c. The development standards of this ordinance and the policies of the Big Sur Coast Land Use
Plan are applied to the parcel. Any policy or standard resulting in a decrease in density are
then tabulated and subtracted from the maximum density allowed under the slope density
formula.
d. Whichever of the two resulting densities, from the slope formula and from zoning, the lesser
is then established as the maximum allowable density for the parcel. (Ref. Policy 5.4.2.8)
IP Section 20.145.140.A.7. A slope density analysis shall be required for applications for
residential development beyond the first residential unit on parcels which are east of Highway 1
and in a “WSC” (Watershed and scenic Conservation) or "RDR” (Rural Density Residential)
zoning district. The analysis shall be required and submitted to the County prior to the
application being considered complete. The slope density analysis shall include the following
elements:
a. topographic map of the entire parcel at an appropriate scale and contour interval of 40 feet
or less ;
b. table showing the calculation of average cross slope as per Sec. 19.08.030 and
20.145.020.W;
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c. the resulting maximum allowable number of dwelling units using the following slope
density formula:
Existing Slope Maximum Allowable Density
Under 15% 1 unit/40 acres
15 - 30% 1 unit/80 acres
Over 30% 1 unit/320 acres
(Ref. Policy 5.4.2.8)
IP Section 20.145.140.A.13. On-site septic or other waste disposal systems shall not be
permitted on slopes exceeding 30%. One acre shall be considered to be the minimum area for
development of a septic system.
IP Section 20.145.140.A.15. Existing parcels of record are considered to be buildable parcels
suitable for development of uses consistent with the provisions of the ordinance and land use
plan, provided that: a) all resource protection policies of the land use plan and standards of the
ordinance can be met; b) there is adequate building area on less than 30% slopes; and, c) that
all other provisions of the Coastal Implementation Plan can be fully met. (Ref. LUP Policy
5.4.2.5)
B. Big Sur Parcelization
Most of the original parcels in Big Sur were created under the original Township and Range survey
system, under which the lands of Monterey County not within recognized Mexican-era land grants were
divided into square-mile blocks termed “townships.” Each township was further divided into 36 square
sections of 640 acres each. Settlers were given the opportunity to homestead and eventually patent a
quarter-section, amounting to 160 acres, as sufficient to maintain a farmstead. Some quarter sections
were further divided into quarters (a sixteenth section, a quarter of a square mile), i.e. 40-acre lots. The
smallest unit of survey was the “U.S. Lot” comprising 10 acres. These U.S. Lots could be aggregated
under a single deed to define a particular homestead claim. Hundreds of homesteads were attempted in
Big Sur’s pioneer days, and dozens of successfully-patented homesteads remain to this day.
Review of the parcelization of Big Sur finds that certain anomalies exist in the pattern of square sections
of lots. When the townships westerly of the Mount Diablo Meridian were first surveyed, some of the
U.S. lots within Township 18 North, Range 1 East (in which the Burke parcels are located) turned out to
have irregular shapes. Specifically, a sliver of land remained between Sections 1 and 2. This appears to
have resulted from the desire to have a rectilinear land survey system, with future homestead parcels
having consistent shapes and dimensions. Of course, the problem in drawing north-south section lines
along the presumed lines of longitude is that the lines of longitude are not in fact exactly parallel but
gently curved along the Earth’s surface. So, Commission staff’s research shows that some small “make-
up” lots were inserted to keep the principal tiers of townships and sections regularly-shaped and parallel.
These lots are identified in Exhibit E. The Burke Lot 17 appears to be one of the original 40-acre lots
(although it measures just under 40 acres at 39.92 acres), and Lots 18 and 1 (6.60 acres and 7.58 acres,
respectively) are two of these remnant “make-up” lots that lie on the border of Sections 1 and 2.
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C. LCP Framework
The Big Sur Coast LUP is premised on preservation of the area’s natural and scenic qualities, and
repeatedly demonstrates a strong policy objective to strictly limit new development of the area. The
LUP’s basic objective for land use and development (Section 2.2.4) states:
The County's primary land use planning objective is to minimize development of the Big Sur
coast in order to preserve the coast as a scenic rural area where residents’ individual lifestyles
can flourish, traditional ranching uses can continue, and the public can come to enjoy nature
and find refuge from the pace of urban life.
The County’s basic policy is that future land use development on the Big Sur coast shall be
extremely limited, in keeping with the larger goal of preserving the Coast as a natural scenic
area. In all cases, new land uses must remain subordinate to the character and grandeur of the
Big Sur coast. All proposed uses, whether public or private, must meet the same exacting
environmental standards and must not degrade the Big Sur landscape.
The LUP describes that the majority of residential development in Big Sur is located in a number of
residential areas (designated Rural Residential) that have generally been developed to a level where the
natural environment is perceived to have been significantly altered, and where residential development
is very apparent on the land. These areas include Otter Cove, Garrapata Ridge/Rocky Point, Garrapata
and Palo Colorado Canyon, Bixby Canyon, Pfeiffer Ridge, Sycamore Canyon, Coastlands, Partington
Ridge, and Buck Creek to Lime Creek. The LUP states that the size and density of these residential
areas varies, but in all cases, they are more densely developed than surrounding lands. They contain a
number of subdivided and residentially-zoned lots in close proximity, yet do not contain resources or
land use activities which generate significant employment services for the public. The Big Sur Coast
LUP acknowledges that while these areas would continue to be developed, full buildout of all other
existing parcels raises inconsistencies with the rural, scenic character of Big Sur and that certain parcels
are not suitable for development. Section 5.1.1 of the LUP states:
While there are historic expectations that buildout of these areas [the identified Rural
Residential areas] would proceed, a number of areas are not suitable for full development of all
existing parcels because of conflicts with the broad objectives of this plan – particularly the
protection of water and scenic resources or limited capacity of local roads.
Big Sur Coast LUP Section 5.3.3 goes on to state:
The plan is flexible concerning the siting of new development, allowing a range of land use
proposals to be made at any particular location. Yet the plan’s resource protection standards,
and slope and road requirements, are stringent, ultimately causing new development to be sited
on the most physically suitable locations and limiting buildout to a level that can be
accommodated on those sites that can meet all of the plan’s requirements.
The development of all parcels in Big Sur, regardless of their physical suitability or buildability, would
result in significant cumulative impacts to the area’s natural and scenic resources as well as place
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additional burden on existing residents. State Highway 1, for example, is already frequently at capacity
and operates at the worst level of service (LOS F) during the peak summer period, and can not be
widened to accommodate more residential traffic. An increase in the projected residential buildout
would also cumulatively exacerbate impacts to water supplies, sensitive habitats, and the area’s other
natural and limited manmade features beyond the area’s capacity to sustain such development. In
general, an increase in residential development potential (beyond that which is contemplated by the
LCP) could alter the unique character of Big Sur that makes it such a popular destination for coastal
access and recreation.
Accordingly, the LUP’s Key Policy 5.4.1 for development states that “future land use development on
the Big Sur coast should be extremely limited, in keeping with the larger goal of preserving the coast as
a scenic natural area.” In order to guide and determine where future land use development should occur,
one of the LUP’s development policies (Policy 5.4.2.5) characterizes what constitutes a buildable parcel.
Under this policy, parcels are considered buildable parcels provided that “all resource protection
policies can be fully satisfied, there are adequate building areas of less than 30% cross slope, and they
are not merged by provisions elsewhere in this plan.” A sampling of the resource protection policies of
the LUP includes the prohibition against development in the critical viewshed, prohibition against
development on 30% slopes, and protection of ESHA (including a 150-foot stream setback
requirement).
In addition, the LCP prescribes maximum allowable densities for parcels east of Highway 1 based on
slopes in order to protect against excessive development in steep mountainous terrain. IP Section
20.145.140.A.6 requires a 40-acre minimum parcel size in the WSC designation (or, in other words, a
maximum of 1 residential unit per 40 acres), assuming a site of less than 15% average slope. Under the
slope density analysis also required in that section of the IP and LUP Policy 5.4.2.8, the minimum parcel
size for areas with slopes that average 30% or more is 320 acres (1 unit per 320 acres). Thus, a
minimum of 40 acres is required for parcels that average less than 15% slopes and a minimum of 320
acres is required for steep parcels that average 30% or greater slopes, and the creation of parcels that do
not meet these criteria is inconsistent with the LCP.
In general, the Big Sur LUP’s resource protection policies are borne out of the basic goal of the LUP:
To preserve for posterity the incomparable beauty of the Big Sur country, its special cultural and
natural resources, its landforms and seascapes and inspirational vistas. To this end, all
development must harmonize with and be subordinate to the wild and natural character of the
land.
Despite the LUP’s resource protection goals, objectives, and policies and the basic premise of minimal
development, the LCP includes various waivers and exceptions to its resource protection policies. These
waiver and exception allowances include exceptions to 30% slope restrictions, riparian setback
requirements, and other development restrictions. It is understood that these waiver and exception
allowances were built into the LCP because it was acknowledged that some departure from the resource
protection policies was necessary to allow for a limited level of development on a number of existing
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legal parcels. Although these exceptions to the resource protection policies exist in the LCP, they are
discretionary, and may only be employed when no alternatives exist (to development on 30% slopes, for
example) and when some level of development must be granted to allow reasonable economic use of a
property consistent with the prohibition against the governmental taking of private property without just
compensation. Any deviation from the LCP’s resource protection policies requires careful consideration
since, as discussed above, the Big Sur Coast LCP is premised on minimal development and protection of
the area’s natural and scenic qualities, and maximum protection of public access to and along the Big
Sur shoreline.
There are some circumstances in which the Big Sur LUP encourages lot line adjustments. Policy
5.4.3.H.4 states that “resubdivisions and lot line adjustments are encouraged when no new developable
lots are created and when plan policies are better met by this action.” For this policy to apply, however,
the lot line adjustment must not result in the creation of new developable parcels, and the new
configuration must improve the potential development’s consistency with the LUP. This emphasis on
only encouraging lot line adjustments when they would facilitate less and more sensitive development is
consistent with the LCP’s strong policy to minimize development in Big Sur, and is supported by LUP
Section 5.2 which states:
A major challenge of this plan is to find a way to substantially curtail further commitment to
residential development resulting from subdivision or other land use intensification while also
assisting landowners in achieving the most sensitive possible development of existing parcels.
Thus, the LCP is designed to curtail the manipulation of parcels that would facilitate further residential
development. Instead, it appears that subdivisions and lot line adjustments were seen as tools for
protecting the public interest, by allowing shifts in the location of buildable density to better comply
with the LUP’s resource protection policies and/or to simply correct property line mistakes or adjust
poorly-shaped parcels or acreages for logistical purposes.
The LCP envisions lot line adjustments as useful for existing buildable parcels (i.e., those parcels with
suitable building, septic, and access road area under 30% slopes, outside the critical viewshed, outside
of ESHA, and consistent with all other LCP requirements) if an adjustment would improve the resource
setting and thereby further the intent of the LCP to protect coastal resources and public access and
recreation. By correcting obsolete or unhelpful property lines, lot line adjustments have the potential to
be used as a tool for protecting coastal resources. There is no evidence in the LCP that lot line
adjustments and resubdivisions were meant to be a means solely to achieve a more marketable parcel
configuration, regardless of existing constraints. In fact, the LCP is designed to “substantially curtail”
new residential development that could be facilitated through subdivisions or other land intensification
mechanisms, such as lot line adjustments.
D. LCP Consistency Analysis
The three existing undeveloped Burke parcels that are the subject of the County-approved lot line
adjustment contain a variety of resource constraints that make them unbuildable under Policy 5.4.2.5.
First, the majority of all three parcels contain slopes greater than 30%, as shown in Exhibit F. LUP
California Coastal Commission
Appeal A-3-MCO-07-004
Burke Lot Line Adjustment
Page 14
Policy 5.4.2.5 and IP Sections 20.145.140.A.15 require adequate building area (for all development) on
less than 30% slopes in order for a parcel to be considered buildable, and IP Section 20.145.140.A.4
prohibits development on slopes of 30% or greater. While there may be enough area under 30% slopes
for a small residence on each of the existing parcels, there would be no way to develop access roads to
those residences, without slope waivers, because of the prevalence of steep slopes. Furthermore, the
LCP prohibits onsite septic systems or other waste disposal systems on slopes exceeding 30% and
requires a minimum one-acre area on less than 30% slopes for development of a septic system (CIP
Section 20.145.140.A.13). A septic system(s) would be necessary for these parcels, given that a sewer
system does not exist for Big Sur. As shown in Exhibit F, no one-acre areas on less than 30% slopes
exist on any of the three existing parcels.
Even if the small pockets of relatively flat area could be accessed on Lots 1 and 18 without the use of
slope waivers and even if one-acre areas on less than 30% slopes existed on each of the parcels,
development of residences would be precluded by their proximity to the north fork of Rocky Creek.
LUP Policy 3.3.3.A.4 requires 150-foot setbacks from all streams, and much of the area under 30%
slopes on Lot 18 lies within 150 feet from Rocky Creek, and the area of Lot 1 that would be closest to an
access road from the other commonly-owned parcels would also be within 150 feet of Rocky Creek.
In addition, access roads to Lots 1 and 18 would have to traverse steep slopes that could be visible from
Highway 1 and/or other public viewing areas (possibly from trails in the Los Padres National Forest),
and they would therefore be subject to the critical viewshed policies of the LCP. (This would require
field verification, but appears to be the case based on aerial photograph and map review.). The LCP
prohibits all new development in the critical viewshed (LUP Policies 3.2.1 and 3.2.3.A.4).
In sum, the three existing parcels would not meet the Policy 5.4.2.5 definition of buildable parcels
because all resource protection policies of the LUP (including prohibition of development on slopes
greater than 30%) cannot be met on them. As described above, it is possible that the parcels could be
developed with allowed uses through the discretionary granting of slope waivers and other exceptions, if
some level of development must be granted to allow reasonable economic use of the properties. Also as
discussed above, such granting of waivers and exceptions on these properties would require careful
consideration, and the merits of any project(s) on these properties would need to be weighed against the
LCP’s resource protection policies and the basic LCP premise of extremely minimal development in Big
Sur. As part of that consideration, the parcels’ land use designation and the LUP priorities for that
designation would need to be evaluated and weighed. These three parcels are designated Watershed and
Scenic Conservation (WSC), the LUP’s primary objective of which is protection of watersheds, streams,
plant communities and scenic values. The principal uses in the proposed WSC LUP land use designation
include agriculture/grazing and supporting ranch houses and related ranch buildings. Residential use is a
secondary, conditional use in this land use designation. Unlike the Rural Residential land use
designation, described above, residential use of WSC land was deemed of secondary importance to
protection of the natural environment.
The proposed lot line adjustment would reconfigure these three lots to facilitate the development of Lots
1 and 18, which are currently exceedingly constrained, as described above. While lot line adjustments
California Coastal Commission
Appeal A-3-MCO-07-004
Burke Lot Line Adjustment
Page 15
are encouraged under some circumstances, this lot line adjustment does not meet the standard in Policy
5.4.3.H.4 because it attempts to create new buildable parcels. Not only would the lot line adjustment
make currently unbuildable parcels more buildable, it would also facilitate the development of lots that
are substandard as to minimum parcel size. The zoning for the Burke parcels (WSC/40) requires the
parcels to be a minimum of 40 acres. The parcels, due to the prevalence of 30% slopes or greater, are
also subject to additional density requirements. Namely, LUP Policy 5.4.2.8 and CIP Section
20.145.140.A.7 prescribe that for parcels with an average slope of 30% or greater, the allowable density
is 1 unit per 320 acres. These minimum parcel sizes were determined to be the appropriate sizes for
WSC lands, given the prevalence of difficult terrain and the LCP’s primary objectives for this zoning
district, described above. The County-approved lot line adjustment does not correct existing sub-
standard parcel size deficiencies, and it reconfigures sub-standard parcels to facilitate their development,
thus encouraging the development of parcels that are a fraction of the required minimum size. Such
development is inconsistent with the minimum lot size requirements of the LCP that are designed to
ensure that new development occurs only on lots of sufficient size in order to protect the area’s natural
and scenic resources.
Furthermore, with respect to the developability and the substandard sizes of the existing parcels, it does
not appear that the applicant’s two small easterly parcels (Lots 1 and 18) were meant as homestead sites.
Instead, as discussed under the “Big Sur Parcelization” section above, they are artifacts of an early-day
land survey process that produced leftover odd fragments of land. Their purpose was not for settlement,
but to keep the survey lines straight. At the time of their creation, there could not have been any
reasonable expectation that either of the Applicants’ very steep, brush-covered, extremely-remote
“sliver” parcels would match the homestead ideal of a freestanding, self sufficient residential ownership.
By the standards of County zoning in effect for many decades, as well as the more recent California
Subdivision Map Act and the certified Monterey County LCP, these lots are substandard.2
Recognition of the Applicants’ existing “sliver” parcels as developable and fully eligible for ordinary
residential construction would intensify the incentive to develop other substandard lots, the amount of
which is unknown but potentially substantial.3 Each vacant parcel cumulatively adds to Big Sur’s
potential total residential buildout. The LCP stresses minimal development in Big Sur because full
buildout of all lots will place an untenable stress on the area’s high quality natural and scenic resources,
public access to the coast, as well as unfairly burden owners of existing developed properties with added
congestion and diminished water supplies, among other things. Highway 1, for example, is already
frequently at capacity, and can not be widened to accommodate more visitor-serving let alone residential
traffic.
2 Nonetheless, each of these lots has been treated as a separate legal parcel. These findings do not dispute such claim of separate
standing.3 The Big Sur Coast Area has more than 300 residences on existing, developed parcels. In addition, there are possibly an equal or greater
number of vacant parcels. The total parcel count is indeterminate. The main reason for this is that from time to time more parcels are
identified and submitted to the County for Certificates of Compliance (COCs). Essentially, the County may issue a COC for the
purposes of recognizing a particular, separate parcel of land that was legally-created under whatever parcelization rules were in
existence at the time.
California Coastal Commission
Appeal A-3-MCO-07-004
Burke Lot Line Adjustment
Page 16
The County-approved lot line adjustment also does not include any elements that would allow for plan
policies to be better met (another requirement of Policy 5.4.3.H.4) beyond what exists under the current
parcel configuration. Although the lot line adjustment could result in shorter access roads and greater
clustering of residential development than if the parcels were each residentially developed in their
current configuration (assuming each of the parcels can be approved for development through the use of
waivers and policy exceptions), all development would still be inconsistent with slope policies, etc. The
County-approved lot line adjustment does not offer anything additional to ensure that plan policies are
better met, such as reduction in overall development density, retirement of development credit
elsewhere, or protective easements.
Since the purpose of the proposed lot line adjustment is to transform nonresidential lots into buildable
residential lots, it is not a proper use of the LUP’s lot line adjustment tool and it is inconsistent with the
LCP’s policies designed to minimize residential development. It would undermine the (already very
low) residential buildout assumptions upon which the Big Sur Coast Area LUP was founded. As stated
in Section 5.2 of the LUP, “Continued residential development and subdivision for residential purposes
is a trend at odds with the preservation of the coast’s natural, scenic, and rural character.” Therefore, the
lot line adjustment cannot be found consistent with the LCP and must be denied.
E. Conclusion
The County-approved lot line adjustment is inconsistent with the Big Sur Coast LUP’s basic premise of
extremely limited development. In addition, the proposed project would facilitate the development of
significantly substandard parcels, inconsistent with LCP policies designed to minimize residential
development where such development is inconsistent with protection of coastal resources. While lot line
adjustments are encouraged under one provision of the LUP, this lot line adjustment does not meet the
standards for when a lot line adjustment should be encouraged, as it is designed to facilitate
development of undevelopable lots and plan policies are not better met by this action. Therefore, the
proposed lot line adjustment is denied, and the parcels remain as currently configured, subject to all
applicable LCP policies.
7. California Environmental Quality Act (CEQA)
Public Resources Code (CEQA) Section 21080(b)(5) and Sections 15270(a) and 15042 (CEQA
Guidelines) of Title 14 of the California Code of Regulations (14 CCR) state in applicable part:
CEQA Guidelines (14 CCR) Section 15042. Authority to Disapprove Projects. [Relevant
Portion.] A public agency may disapprove a project if necessary in order to avoid one or more
significant effects on the environment that would occur if the project were approved as
proposed.
Public Resources Code (CEQA) Section 21080(b)(5). Division Application and
Nonapplication. …(b) This division does not apply to any of the following activities: …(5)
Projects which a public agency rejects or disapproves.
California Coastal Commission
Appeal A-3-MCO-07-004
Burke Lot Line Adjustment
Page 17
Public Resources Code (CEQA) Section 21080.5(d)(2)(A). Require that an activity will not be
approved or adopted as proposed if there are feasible alternatives or feasible mitigation
measures available which would substantially lessen any significant adverse effect which the
activity may have on the environment.
CEQA Guidelines (14 CCR) Section 15270(a). Projects Which are Disapproved. (a) CEQA
does not apply to projects which a public agency rejects or disapproves.
Section 13096 (14 CCR) requires that a specific finding be made in conjunction with coastal
development permit applications about the consistency of the application with any applicable
requirements of CEQA. This staff report has discussed the relevant coastal resource issues with the
proposal. All above LCP conformity findings are incorporated herein in their entirety by reference. As
detailed in the findings above, the proposed project would have significant adverse effects on the
environment as that term is understood in a CEQA context.
Pursuant to CEQA Guidelines (14 CCR) Section 15042 “a public agency may disapprove a project if
necessary in order to avoid one or more significant effects on the environment that would occur if the
project were approved as proposed.” Section 21080(b)(5) of CEQA, as implemented by Section 15270
of the CEQA Guidelines, provides that CEQA does not apply to projects which a public agency rejects
or disapproves. Section 21080.5(d)(2)(A) of CEQA prohibits a proposed development from being
approved if there are feasible alternatives or feasible mitigation measures available which would
substantially lessen any significant adverse effect which the activity may have on the environment.
Monterey County, the lead agency for the project, determined that there is no substantial evidence that
the project may have a significant effect on the environment, and therefore issued a categorical
exemption for the project. On appeal, the Commission finds that denial, for the reasons stated in the
findings in this report, is necessary to avoid the significant effects on coastal resources that would occur
if the project were approved as proposed. Accordingly, the Commission’s denial of this project
represents an action to which CEQA, and all requirements contained therein that might otherwise apply
to regulatory actions by the Commission, does not apply.
California Coastal Commission
SD&S D-1/bh/04.27.21 Driveway Turnaround 1 of 4
Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos,
Los Altos Hills, Los Gatos, Monte Sereno, and Saratoga.
SANTA CLARA COUNTY FIRE DEPARTMENT
14700 Winchester Blvd., Los Gatos, CA 95032 | (408) 378-4010 | www.sccfd.org
SCOPE
This standard is applicable to driveways serving up to two (2) single family dwellings
where any portion of the dwelling(s) is greater than 200 feet from the center line of a
public roadway. The specifications contained in this standard apply only to properties
located within the incorporated city/town services areas of the Santa Clara County Fire
Department. Fire department access for dwellings in unincorporated County areas shall
conform to County of Santa Clara driveway/roadway standards.
AUTHORITY
California Fire Code (C.F.C), Applicable Municipal/Town Codes and Standards
DEFINITIONS
Driveway: A vehicular access roadway less than 20 feet in width and serving no more
than two single-family dwellings.
Roadway: A vehicular access roadway greater than or equal to 20 feet in width serving
more than two single-family dwellings.
REQUIREMENTS
I. DRIVEWAY WIDTH
A. For Campbell, Cupertino, Los Gatos, Monte Sereno, and Los Altos Hills: A 12-
foot-wide paved surface.
B. For Los Altos: A 14-foot-wide paved surface.
C. For Saratoga: A 14-foot-wide paved surface.
STANDARD DETAILS & SPECIFICATIONS Spec No D-1
Rev. Date 04/27/21
SUBJECT: Specifications for Driveways, Turnarounds and Eff. Date 01/23/97
Turn Outs Serving up to Two (2) Single Family Dwellings Approved By ____
Page __1___ of __4__
SD&S D-1/bh/04.27.21 Driveway Turnaround 2 of 4
Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos,
Los Altos Hills, Los Gatos, Monte Sereno, and Saratoga.
II. VERTICAL CLEARANCE
A. The vertical clearance above the entire length of the driveway shall be in
accordance with the CFC; 13 feet 6 inches.
III. GRADE
NOTE: When approved by the Fire Code official, grades up to 20% may be allowed.
In no case shall the portion of driveway exceeding 15% gradient be longer than 300-
feet in length. For longer driveways, there shall be at least 100-feet of driveway at
15% or less gradient between each 300-foot section that exceeds 15%.
IV. GATES
The installation of gates or other barricades across driveways shall comply with Santa
Clara County Fire Department’s Standard G-1.
V. PAVEMENT SURFACE:
Driveways shall be an all-weather surface of either asphalt, concrete or another
engineered surface acceptable to the fire department. The surface shall be approved
by a civil engineer and be able to support apparatus weighing at least 75,000 pounds.
NOTE: For alternative roadway surfaces such as “Turf Block” or other materials that
blend into landscaping and/or that do not readily appear to be driving surfaces, the
boundary edges of the alternate material shall be delineated as approved by the fire
code official. Delineation shall be by concrete curbs, borders, posts, or other means
that clearly indicate the location and extent of the driving surface.
VI. BRIDGES AND CULVERTS:
A. Where a bridge or an elevated surface is part of a fire apparatus access road, the
bridge shall be constructed and maintained in accordance with AASHTO HB-17.
B. All bridges, elevated surfaces and culverts shall be designed for a live load
sufficient to carry the imposed load of a fire apparatus weighing at least 75,000
pounds. Vehicle load limits shall be posted at the entrance to the bridge.
Additional signs may be required by the fire code official. Where elevated surfaces
designed for emergency vehicle use are adjacent to surfaces which are not
designed for such use, approved barriers, approved signs or both shall be
installed and maintained when required by the fire code official.
SD&S D-1/bh/04.27.21 Driveway Turnaround 4 of 4
Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos,
Los Altos Hills, Los Gatos, Monte Sereno, and Saratoga.
SANTA CLARA COUNTY FIRE DEPARTMENT
14700 Winchester Blvd., Los Gatos, CA 95032 | (408) 378-4010 | www.sccfd.org
VII. ANGLES OF APPROACH AND DEPARTURE:
For driveways sloping upward from the access roadway, the angles of approach and
departure shall be as approved by the fire code official.
VIII. TURNING RADIUS:
The minimum outside turning radius is 40 feet, unless otherwise specified.
Exception: Modified turning radius may be allowed by the fire code official in cases
where conditions acceptable under the CFC allow for such deviation. Requests for
such modifications must be made in writing to the fire code official for review.
IX. TURNOUTS:
Turnouts are required every 500 feet for driveways in excess of 500 feet.
SD&S D-1/bh/04.27.21 Driveway Turnaround 4 of 4
Serving Santa Clara County and the communities of Campbell, Cupertino, Los Altos,
Los Altos Hills, Los Gatos, Monte Sereno, and Saratoga.
SANTA CLARA COUNTY FIRE DEPARTMENT
14700 Winchester Blvd., Los Gatos, CA 95032 | (408) 378-4010 | www.sccfd.org
X. TURNAROUNDS:
Turnarounds are required for all driveways with a length in excess of 150 feet.
NOTE: Turnarounds cannot exceed 5% in any one direction.
DIMENSION A:
DRIVEWAY WIDTH:
12 FT • CAMPBELL
• CUPERTINO
• LOS GATOS
• MONTE SERENO
• LOS ALTOS HILLS
14 FT • LOS ALTOS • SARATOGA
Item 10
October 16, 2013
2120 Milvia Street, 3rd Floor, Berkeley, CA, 94704 Tel: 510.981-7400 Fax: 510 981-7490 TDD:510 981-7474
E-mail: planning@ci.berkeley.ca.us
Planning and Development Department
October 16, 2013
TO: Planning Commission
FROM: Wendy Cosin, Deputy Planning Director
SUBJECT: Appeal of Proposal to Merge Two Lots at 2750 Cedar Street (Assessor’s Parcel
No. 058 2211 02 000) and 0 La Vereda (Assessor’s Parcel No. 058 2211 01
1802)
RECOMMENDATION
Affirm the determination of the Director of Planning and Development that the property known
as 2750 Cedar Street (Assessor’s Parcel No. 058 2211 02 000) and 0 La Vereda (Assessor’s
Parcel No. 058 2211 01 1802) is merged pursuant to the requirements of the City’s Merger
Ordinance, Chapter 21.52 of the Berkeley Municipal Code, and Section 66451.11 of the
California Government Code.
BACKGROUND
In response to several inquiries regarding the proposed sale and development potential of
2750 Cedar Street (Assessor’s Parcel No. 058 2211 02 000) and 0 La Vereda (Assessor’s
Parcel No. 058 2211 01 1802), the Planning Director recorded the attached “Notice of
Intention to Determine Status” for the properties. The purpose of the City action is to merge
the two lots and to limit the development potential to that which could be constructed on one
R-1H lot, rather than two lots. The current property owner, Lisa Iwamoto, filed an appeal of
the determination. Michael Tolleson, the architect for the new owner, Louis B. Lin, filed the
basis for the appeal.
The State Subdivision Map Act sets forth procedures and requirements for cities and counties
to merge legally established and contiguous lots under common ownership. To merge
parcels, the local agency must have an ordinance that conforms to the requirements of
Government Code Section 66451 et. seq. In 1987, Berkeley adopted a Merger Ordinance
that is part of the Subdivision Ordinance and is codified as BMC Chapter 21.52.
The Map Act authorizes local agencies to merge contiguous parcels that are under the same
ownership if they meet criteria in the law. Any one of the parcels must be smaller than the
minimum parcel size that the local Zoning Ordinance specifies, and at least one parcel must
not be developed with any structure for which a building permit was issued or for which a
building permit was not required at the time of construction, or must be developed only with
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 2
an accessory structure or structures, or with a structure other than an accessory structure
that is partially sited on a contiguous parcel (Gov. Code Sec. 66451.11). In addition, any of
the parcels to be merged must meet one or more of the following conditions:
1. Less than 5,000 square feet in area;
2. Not created in compliance with applicable laws and ordinances;
3. Not meet current standards for sewage disposal and domestic water supply;
4. Not meet slope stability standards;
5. No legal access adequate for vehicular and safety equipment access and
maneuverability;
6. Development would create health or safety hazards; or
7. Inconsistent with any applicable general plan or specific plan, other than minimum lot size
or density standards.
Summary of Applicability of Merger Criteria
Merger Criteria Subject Property
Any one of the parcels must be smaller than
the minimum parcel size that the local zoning
ordinance specifies,
and
at least one parcel must not be developed
with any structure for which a building permit
was issued or for which a building permit was
not required at the time of construction, or
must be developed only with an accessory
structure or structures or with a structure
other than an accessory structure that is
partially sited on a contiguous parcel.
Each parcel is less than 5,000 square feet in
area.
One parcel is vacant (0 La Vereda Road -
Assessor’s Parcel No. 058 2211 01 1802)
Any of the parcels to be merged must meet
one or more of the following conditions:
1. Less than 5,000 square feet in area.
Each parcel is less than 5,000 square feet in
area.
PROPERTY DESCRIPTION
A map is attached to the Public Hearing Notice showing the location of the property. The
steeply sloped properties are briefly described below:
2750 Cedar Street (Assessor’s Parcel No. 058 2211 02 000) is a 3,125 square foot lot
(based on City records), developed with an uninhabitable single-family dwelling. The
architect for the new owner represents the lot size as 3,106 square feet. The property
has street frontage on an undeveloped portion of the Cedar Street right-of-way and is
located behind 1601 La Vereda.
0 La Vereda Road (Assessor’s Parcel No. 058 2211 01 1802) is a 3,892 square foot
(based on City records) vacant flag lot with approximately 14 feet of street frontage on La
Vereda Road. The architect for the new owner represents the lot size as 4,007 square
feet. The lot is located between and behind 1601 and 1611 La Vereda.
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 3
The Building and Safety Division of the Planning Department recently sent a Notice of Violation
to the property owners regarding structural issues with the porch at 2750 Cedar Street. In
addition, the Parks Department recently sent a citation for $1,200 to the property owners due
to the illegal removal of one Coast Live Oak tree.
Vehicular access to the properties is not currently possible, and is likely impossible in the future.
Although 2750 Cedar Street is located adjacent to a public right-of-way, Cedar Street is not
developed, nor does the City have plans for the street to be developed. It is steeply sloped
(estimated slope is 40 – 50 percent) and is heavily vegetated, including Coast Live Oak trees.
For a street to be developed, significant grading would be required, and at least four protected
Coast Live Oak trees would need to be removed, which is not allowed.
The structure located on 2750 Cedar was constructed in 1950. It is a one-story building,
approximately 52 feet long and 14 feet wide. It is dilapidated and not habitable in its current
condition. The 25-foot wide lot slopes from contour line 174 to 188, which would be more than a
50 percent slope if the property were not already graded for the existing structure. There is no
vehicular access to the property; the stairs through the La Vereda lot provide pedestrian access.
The La Vereda lot, which is vacant, has access from a narrow portion of the lot with street
frontage on La Vereda. At the street, the lot is 14 feet wide, but it narrows to 10 feet
approximately 25 feet behind the front property line. The slope of this portion of the lot is more
than 40 percent, with elevations increasing from contour line 102 at the front property line to 164
over the 145 foot length of the north lot line leading to the 2750 Cedar structure. There are
stairs in this area. There is no vehicular access. The area of the La Vereda lot that could
potentially be developed if the lots are not merged is approximately 47 feet x 52 feet, with the
slope increasing at approximately 65 percent from contour line 132 at the southwest corner of
this area to 162 at the northeast corner.
The property is located in the R-1H zoning district. The R-1 district is a low density, single-
family residential district. The purposes of the Hillside (H) districts are to:
A. Implement the Master Plan’s policies regarding Hillside Development;
B. Protect the character of Berkeley’s hill Districts and their immediate environs;
C. Give reasonable protection to views yet allow appropriate development of all property;
D. Allow modifications in standard yard and height requirements when justified because of
steep topography, irregular lot pattern, unusual street conditions, or other special aspects of
the Hillside District area.
Merger of the lots is consistent with the R-1H district purposes because limiting development to
one single-family dwelling and any other development allowable in the R-1H district would be
more protective of the sensitive hillside area than allowing separate development of the two lots.
This is especially true, given that there is no vehicular access to the property, it is steeply
sloped, and there are Coast Live Oak trees on the property and on the Cedar Street right-of-say.
The property is in Fire Zone Two, one of two fire zones that the City established following the
1991 Oakland-Berkeley Hills Fire to encompass the City’s urban/wild land interface areas.
These are areas where structures may be more vulnerable to fire due to topography, vegetation
and their location close to extensive parks and other wild land areas. The City amended the
Building and Fire Codes to impose more stringent requirements in these zones. In Fire Zone
Two, the Building Code requires that new structures and alterations to existing buildings include
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 4
non-combustible decks, Class A roofs, protection of exterior walls with fire-resistive materials,
double glazed windows, protection of eaves and overhangs, and the enclosing of under floor
areas.
As described above, the property and the Cedar Street right-of-way are very steeply sloped,
varying from 40 – 65 percent. The City is not citing the lack of “legal access adequate for
vehicular and safety equipment access and maneuverability” as a basis for merger because the
Fire Department has the ability to allow exceptions regarding provision of fire apparatus access
roads. However, the topography and vegetation are additional reasons that it is appropriate to
limit development of the property. In particular, emergency vehicular access cannot be provided
to either lot, and while response to fires may be mitigated through provision of standpipes and
sprinklers, emergency response personnel may not be able to assist individuals with medical
difficulties since the only access is from a steep, narrow staircase.
APPEAL AND RESPONSE
Michael Tolleson, Architect, submitted a September 17, 2013, letter and attachments on behalf
of his client, Dr. Louis B. Lin, who was in escrow to purchase the property at the time.
The points raised in the letter are briefly summarized below, with a response provided.
Comment: The Notice of Intention to Determine Status was in error.
Response: Mr. Tolleson does not state how he believes the Notice was in error. The Notice
was not in error - it was prepared in accordance with Government Code Sections 66451.1 -
66451.18 and Berkeley Municipal Code Chapter 21.52.
Comment: The letter quotes sections of the zoning regulations regarding nonconforming
uses and lots. In particular, Mr. Tolleson cites the following sections as the basis of his
conclusion that the lots cannot be merged because their combined square footage exceeds
the 5,000 square foot minimum requirements for the R-1H zoning district.
23C.04.020 Establishment of Lawful Non-Conforming Uses, Buildings, Structures & Lots
A. Any Use, structure or building which is a Lawful Non-Conforming Use, structure or building shall be
deemed to be in compliance with this Ordinance if it has remained in continuous existence. The non-
conformity may result from any inconsistency with the requirements of this Ordinance, whether substantive
or procedural, including, but not limited to, the inconsistency of the Use, building or structure or aspects
thereof, with any requirement of this Ordinance or the lack of a Zoning Certificate or Use Permit.
B. The following lots which have areas less than the minimum lot size required by this Ordinance shall be
considered Lawful Non-Conforming Lots. Such lots may be used as building sites subject to all other
requirements of this Ordinance, except that if the total area of all contiguous vacant lots fronting on the
same street and under the same ownership on or after September 1, 1958 is less than that required for one
lot under this Ordinance, such lots may be used as only one building site.
1. Any lot described in the official records on file in the office of the County Recorder of Alameda
County or Contra Costa County as a lot of record under one ownership prior to November 30, 1950 or
which was shown as a lot on any recorded subdivision map, filed prior to November 30, 1950; …
Response: Staff concurs that under Section 23C.04.020, the two existing lots appear to be
“lawful nonconforming lots”, and that each lot is less than the minimum lot size required by
the zoning district. The language in Subsection A, regarding Lawful Non-Conforming Uses, is
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 5
not relevant to the question of whether the property has two legal nonconforming lots. The
language in Subsection B that that lawful nonconforming lots are buildable does not prevent
their merger, as the authority to merge the lots derives from the Subdivision map Act and the
City’s local implementing ordinance, which are independent of the Zoning Ordinance.
Nothing in the zoning regulations regarding nonconforming lots limits the City’s ability to
follow the merger provisions of state and local subdivision law. The zoning regulations speak
only to whether the use and development of such lots is permissible under the Zoning
Ordinance.
Comment: The following section of the City’s Subdivision Ordinance provides that the above
zoning ordinance sections are an exception to the City’s merger authority.
21.52.020 Mergers required.
If any one of two or more contiguous parcels or units held by the same owner does not conform to existing
zoning regulations regarding site area to permit development (whether or not already developed), and at
least one parcel or unit has not been developed with a building for which a building permit is required and
was issued, or which was built prior to the time such permits were required, then such parcels shall be
considered as merged for the purposes of this title, subject to any exceptions provided in the Berkeley
zoning ordinance, (Ord. 6478-N.S.) ...
Response: Mr. Tolleson’s position appears to be that because the Zoning Ordinance
acknowledges lawful nonconforming lots, such lots are an “exception” and cannot be merged.
There is no basis for this. The purpose of state and local merger laws is to provide a process
for jurisdictions to combine contiguous parcels that were created legally, but that do not meet
current local standards. Reading this provision and Section 23C.04.020.B as prohibiting the
merger of lawful nonconforming lots would render the merger provision of the local
subdivision ordinance meaningless. Such interpretations are to be avoided.
Comment: Individual deeds for the lots were provided.
Response: Not relevant; as indicated above, the City accepts that the two lots are Lawful
Non-Conforming Lots pursuant to BMC Section 23C.04.020.
Comment: Fire Codes are cited. In particular, the Codes state that when approved fire
apparatus access roads cannot be provided within 150 feet of all portions of a building, the
Fire Department official may increase the dimension when a sprinkler system is installed, an
alternative to fire access roads is provided, and there are not more than two buildings. Mr.
Tolleson notes that most of the existing structure at 2750 Cedar Street is greater than 150
feet from Fire Department access on La Vereda, but its use can be continued, and that while
there are areas of the vacant site that are less than 150 feet from La Vereda, exceptions
could be allowed for development further from the street.
Response: Noted. While the Berkeley Fire Department has the option of approving
modified requirements for any fire access roadways for houses with a full fire sprinkler
system, it is not required to do so, and generally requires additional mitigations as well.
Comment: Excerpt from Subdivision Map Act cited regarding presumption of lawful
creation of certain parcels.
Response: Not relevant. Government Code Section 66451 et. seq. establishes the process
for merger of lawful parcels.
Comment: The letter’s conclusions are summarized below:
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 6
Utilizing all provided Code sections and supporting documents, the two parcels may remain
separate; the vacant parcel may be developed with a new single-family dwelling consistent
with the R-1(H) zoning requirements, provided that an easement be provided to the 2750
Cedar Street parcel; required parking could be provided with mechanical stacking; and the
City could request a Certificate of Compliance to assure Chain of Title.
Response: Not relevant. The statement is true -- if the parcels are not merged, the vacant
parcel could be developed with a new single family dwelling. However, Government Code
Section 66451 et. seq. establishes the process for merger of lawful parcels, which the City
has followed.
Responses to individual points raised in the appeal are provided above. In summary, the two
adjoining parcels are subject to merger into one parcel because City records and County
Assessor’s records show that they meet the criteria of Government Code Section 66451.11
and BMC Chapter 21.52 (the Berkeley Subdivision Ordinance), as follows:
1. Each parcel is smaller than the minimum 5,000 square foot minimum lot size in the R-1
District (BMC 23D.16.070A), and
2. One of the parcels (0 La Vereda - Assessor’s Parcel No. 058 2211 01 1802) is
undeveloped by any structure for which a building permit was issued, or for which a
building permit was not required, or is developed only with an accessory structure.
In addition to meeting the aforementioned criteria, which are sufficient legal basis for merging
the two lots, any further development on this property would exacerbate existing access
problems. 2750 Cedar Street only has access from an undeveloped street which is steeply
sloped and heavily vegetated, 0 La Vereda only has access via a 10 – 14 foot strip of land that
is steeply sloped and not accessible to vehicles or emergency equipment.
OPTIONS FOR ACTIONS ON APPEALS
California Government Code Section 66451.16 states that the owner of property proposed for
merger shall be given an opportunity to present any evidence that the affected property does
not meet the standards for merger. Following the hearing, the local agency shall make a
determination that the affected parcels are to be merged or are not to be merged and shall
notify the owner of its determination. Section 21.52.030 of the Subdivision Ordinance, of the
City of Berkeley, provides that the Planning Commission shall conduct hearings if there are
appeals of any of the proposed lot mergers. The decision of the Planning Commission is
final.
RECOMMENDATION
Staff recommends that the Planning Commission affirm the decision of the Planning and
Development Director to merge the subject properties and reject the appeal based on the
following findings:
1. City and county records identify Lisa Iwamoto and Craig Scott as the owners of two
contiguous parcels identified as 2750 Cedar Street (Assessor’s Parcel No. 058 2211 02
000) and 0 La Vereda (Assessor’s Parcel No. 058 2211 01 1802).
Appeal of Proposed Merger of 2750 Cedar and 0 La Vereda Item 10
October 16, 2013
Page 7
2. A “Notice of Intention to Determine Status” was recorded on September 4, 2013, and was
sent by Certified Mail to the property owner of record on the same date.
3. A notice of the time, date, and place for the hearing was sent by Certified Mail to the
property owner of record on September 30, 2013.
4. The two parcels described above meet the requirements for merger under the Subdivision
Map Act (Gov. Code §§66451.10, et seq.) and City Ordinance (BMC 21.52) for the
following reasons:
A. The two parcels are contiguous;
B. Each parcel is smaller than the minimum 5,000 square foot minimum lot size in the R-
1 District. According to City records, 2750 Cedar is a 3,125 square foot lot; 0 La
Vereda is a 3,892 square foot lot;
C. One of the parcels (0 La Vereda - Assessor’s Parcel No. 058 2211 01 1802) is
undeveloped by any structure for which a building permit was issued, or for which a
building permit was not required, or is developed only with an accessory structure.
The other parcel is developed with a residential structure;
D. There are no exceptions in the Berkeley Zoning Ordinance that limit the City’s ability to
merge the parcels pursuant to state and local subdivision regulations.
Attachments:
A. Public Hearing Notice, with Map of Property
B. Notice of Intention to Determine Status, including Attachments (Letter to Owner,
Recorded Notice, Assessor Parcel Map, Government Code Section 66451 et. seq., R- 1
and H Zoning Regulations, & Fire Department Requirements)
C. Appeal Letter from Lisa Iwamoto, dated September 20, 2013
D. Letter and Attachments (Site Plan, Deed, Perspective View of Existing Single Family
Dwelling to be Repaired) from Michael Tolleson, Architect, dated September 17, 2013
E. E-mail from Michael Tolleson, Architect, dated October 7, 2013
F. BMC Chapter 21.52 - Parcel Mergers
G. Moratorium on the Removal of Coast Live Oak Trees (Ordinance No. 6,905-N.S.)
Item 10 - Attachment A
Planning Commission
October 16, 2015
Item 10 - Attachment B
Planning Commission
October 16, 2013
Item 10 - Attachment C
Planning Commission
October 16, 2013
Item 10 - Attachment D
Planning Commission
October 16, 2013
Item 10 - Attachment E
Planning Commission
October 16, 2013
Item 10 - Attachment F
Planning Commission
October 16, 2013
Item 10 - Attachment G
Planning Commission
October 16, 2013
1
Filed 4/20/12
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SIERRA CLUB,
Plaintiff and Appellant,
v.
NAPA COUNTY BOARD OF
SUPERVISORS et al.,
Defendants and Respondents.
A130980
(Napa County
Super. Ct. No. 26-51193)
In 2009 respondent Napa County Board of Supervisors1 adopted clarifying lot line
adjustment Ordinance No. 1331 (Ordinance). Subject to provisos, sequential lot line
adjustments are included within the definition of ―lot line adjustment.‖ (Napa County
Code, § 17.02.360.) Appellant Sierra Club has facially challenged the Ordinance as
violative of both the Subdivision Map Act2 (Map Act or act) and the California
Environmental Quality Act3 (CEQA). We hold that the provisions of the Ordinance
allowing sequential lot line adjustments are consistent with the Map Act‘s exclusion of
lot line adjustments from the requirements of the act. Further, since the Ordinance spells
out a ministerial lot line adjustment approval process, the Ordinance is exempt from
CEQA purview. Finally, we reject respondents‘ claim that appellant‘s action is time-
barred. Accordingly, we affirm the judgment.
1 We refer collectively to respondents Napa County Board of Supervisors (Board)
and the County of Napa as ―County‖ or ―respondents.‖
2 Government Code section 66410 et seq. Unless otherwise noted, all statutory
references are to the Government Code.
3 Public Resources Code section 21000 et seq.
2
I. BACKGROUND
A. History of Lot Line Adjustment Provisions under the Map Act
In 1976 the Legislature amended the Map Act to exempt from the procedures of
the act any lot line adjustment between two or more adjacent parcels, where the land
taken from one parcel was added to an adjacent parcel but no additional parcels were
thereby created, and provided the lot line adjustment was approved by the local agency.
(§ 66412, as amended by Stats. 1976, ch. 92, § 1, p. 150.) Prior to that time, some local
jurisdictions required that a parcel map be filed before a conveyance could be made to
effect a lot line adjustment. The amendment eliminated the need to file a parcel map for
minor adjustments to lot lines between adjacent parcels. (Dept. of Real Estate, Enrolled
Bill Rep. on Assem. Bill No. 2381 (1975-1976 Reg. Sess.) Mar. 26, 1976.) The
legislation was also described as allowing a ― ‗friendly neighbor‘ [lot line] adjustment
without going through procedures provided in the map act . . . . ‖ (Sen. Local Gov. Com.,
Staff Analysis on Assem. Bill No. 2381, as amended Jan 15, 1976.)
Fifteen years later, the Legislature enacted a bill that restricted the scope of the
exemption to lot line adjustments ―between four or fewer existing adjoining parcels,‖
with the same proviso that a greater number of parcels than originally existed is not
thereby created. (§ 66412, subd. (d) (§ 66412(d)).) The statute further provides that the
lot line adjustment must be approved by the local agency or advisory agency, and the
agency‘s review and approval shall be limited ―to a determination of whether or not the
parcels resulting from the lot line adjustment will conform to the local general plan, any
applicable specific plan, any applicable coastal plan, and zoning and building
ordinances.‖ (Ibid.)
B. History Of Napa Ordinances Governing Lot Line Adjustments
In 2002 the County revised its local ordinance to coincide with the changes set
forth in the amended section 66412(d), specifically reflecting that lot line adjustments
involving four or fewer adjoining parcels were exempt from the Map Act. The ordinance
also prohibited lot line adjustments that transformed nonbuilding parcels into buildable
ones, as determined by parcel size, shape, geographic features, legal restrictions and other
3
unspecified factors. The ordinance was silent on whether sequential adjustments
affecting four or fewer parcels would be permitted.
Around December 2007, the County planning director solicited direction from the
Board concerning whether sequential lot line adjustments should be permitted, and if so,
to what degree. At the time there were pending applications from one owner for lot line
adjustments affecting 16 contiguous parcels, in which each application only affected four
parcels but were sequential in that a lot adjusted under one application was further
adjusted under a sequential application. A survey of other county practices revealed that
one county prohibited sequential lot line adjustments outright and another allowed them
with a waiting period between each sequential application. Another option would allow
sequential adjustments outright without delay. At the time, there were less than 100
instances countywide in which a single owner owned more than four contiguous parcels,
but that ownership affected nearly 100,000 acres. The director recommended an
ordinance allowing the processing of successive applications, but with a waiting period or
delay of six to eight weeks between applications during which time the first
reconfiguration would be recorded. The Board accepted the recommendation and
directed staff to prepare an ordinance.
In 2008 the County received lot line adjustment applications from Calness
Vintners affecting a total of six parcels located within the Agricultural Preserve Zoning
District. The Town of Yountville objected to the lot line adjustments, complaining that
the adjustment of parcels adjacent to its boundaries appeared to set the stage for future
residential development that would reduce agricultural use and raise other potential
environmental impacts. At least one property owner appealed. At the hearing, the Board
asked staff to prepare an agenda item enabling it to reconsider its position on sequential
lot line adjustments specifically, and the approval process generally.
In May 2009 a draft ordinance was presented to the Board. The draft
distinguished between ―major‖ lot line adjustments dependent on discretionary approval
subject to CEQA, and ―minor‖ adjustments treated as ministerial and thus outside
CEQA‘s purview. Sequential lot line adjustments and adjustments requiring a variance
4
would be considered ―major,‖ as would those entirely relocating an existing parcel, or
seeking to enlarge a parcel to more than 10 acres.4 ―Sequential lot line adjustment‖ was
defined as any readjustment of a parcel which had been previously adjusted in the past
five years. As well, the draft ordinance revised the definition of ―buildability‖ to provide
further guidance as to what was a ―buildable‖ lot eligible for adjustment.
At the hearing, the Board grappled with how to distinguish between major and
minor lot line adjustments. One supervisor put it this way: ―I think there is a sequential
lot line adjustment that is used to subvert—to get around CEQA and that‘s what we . . .
want to include as a major lot line adjustment, but how you distinguish that from the
tractor turn around and the other adjustment that is sometimes . . . needed . . . .‖ The
Board directed staff to develop a draft ordinance in concert with stakeholders
representing a variety of interests. Four meetings were held over the summer, resulting in
a substantially revised ordinance. Gone was the distinction between major and minor lot
line adjustments. Additionally, all adjustments were deemed ministerial except those
requiring a variance or processed concurrently with a discretionary permit. As well, the
ordinance revised the definition of ―buildability‖ and continued to authorize sequential
lot line adjustments.5
The revised ordinance went to the planning commission in October 2009, with the
commission recommending Board approval. During the hearing, the chairperson
expressed concern that although the ordinance did not allow for the creation of new
4 Ten acres is the minimum parcel size on which a winery may be built in the
County. (Napa County Code, § 18.104.240, subd. B.)
5 Specifically, the ordinance provides that ―[l]ot line adjustments shall include
sequential lot line adjustments, in which parcels which have been previously adjusted are
subsequently readjusted, provided that the prior adjustment has been completed and
resulting deeds recorded prior to the sequential lot line adjustment application being
filed.‖ (Napa County Code, § 17.02.360, subd. B.) The ordinance defines ―[l]ot line
adjustment‖ as ―a reorientation of a property line or lines between four or fewer existing
adjoining parcels, where the land taken from one parcel is added to an adjoining parcel
and where a greater number of parcels than originally existed is not thereby created.‖
(Id., § 17.02.360, subd. A.)
5
parcels, ―maybe you‘re modifying something that is gonna lead to more development.
And I struggle with that one philosophically . . . . [W]hat are we really doing here?‖
The Board adopted the Ordinance in December 2009, with an effective date of
January 7, 2010. The approvals asserted that the Ordinance was exempt from CEQA
based on a class 5 categorical exemption6 and general rule.7 At the hearing, questions
again arose as to the ministerial-discretionary distinction, particularly where there are
ministerial lot line adjustments proposed concurrently with discretionary approvals. The
planning director acknowledged that ―if someone wants to game the system and has the
time to invest in a long process of sequential applications,‖ an applicant could ―get
around this.‖
The Ordinance as adopted continued the County‘s existing administrative practice
of allowing lot line adjustments impacting four or fewer parcels to readjust lots included
in a prior application, provided the prior adjustments had been completed and recorded.
So, too, the new Ordinance continued existing policy and practice such that line
adjustments are ministerial acts not subject to CEQA.
6 A class 5 exemption ―consists of minor alterations in land use limitations in areas
with an average slope of less than 20%, which do not result in any changes in land use or
density, including but not limited to: [¶] (a) Minor lot line adjustments . . . .‖ (Cal. Code
Regs., tit. 14, § 15305 (hereafter Regs.).)
7 A project is exempt from CEQA if ―[t]he activity is covered by the general rule
that CEQA applies only to projects which have the potential for causing a significant
effect on the environment. Where it can be seen with certainty that there is no possibility
that the activity in question may have a significant effect on the environment, the activity
is not subject to CEQA.‖ (Regs., § 15061, subd. (b)(3).)
6
C. Litigation
Sierra Club challenged the Ordinance by a petition for writ of mandate, alleging
(1) violation of the Map Act‘s limited lot line adjustment exemption; (2) violation of the
Map Act and CEQA due to classifying all lot line adjustment approvals as ministerial;
(3) violation of CEQA‘s prohibition on piecemealing; and (4) that the Ordinance did not
qualify for any CEQA exemption.
Sierra Club requested that the County stipulate to a court order extending its time
to prepare the record, pursuant to Public Resources Code section 21167.6, subdivision
(c). The County agreed and the court ordered that the deadline to prepare the record was
extended to May 14, 2010.
The County demurred on grounds that Sierra Club failed to effect summons within
90 days of the decision, as required by section 66499.37, for any proceeding challenging
a decision ―concerning a subdivision.‖ (Ibid.) Overruling the demurrer, the trial court
held that the County‘s stipulation to extend time to prepare the record amounted to a
general appearance, and thus the County waived any irregularities in the service of
summons.
Thereafter the court denied the petition on the merits, ruling that the language of
the Map Act was clear on its face and did not bar sequential lot line adjustments. It
concluded that while the legislative history of the applicable amendment demonstrated a
concern over unfettered land reconfiguration through the lot line adjustment process, it
was plausible that rather than seeking to ban all sequential lot line adjustments, the
Legislature was attempting to find a balance for ―an appropriate pace of land
reconfiguration.‖ (Italics omitted.) Further, the court ruled that because the County‘s
approval of lot line adjustments was constrained under the Map Act and the Ordinance,
such approvals were ministerial and not subject to CEQA. The court further found that
the County‘s adoption of the Ordinance came within the ―common sense‖ CEQA
exemption. In this regard, it noted that there was substantial evidence that the ministerial
approval of sequential lot line adjustments was already legal and practiced by the County,
and thus there was no possibility of affecting the physical environment.
7
II. DISCUSSION
A. Sierra Club’s Action Was Not Time-barred
The County raises an issue of error concerning the trial court‘s nonappealable
order overruling its demurrer, continuing to press that Sierra Club‘s action is time-barred.
It is proper to raise this issue in the respondent‘s brief. (See Selger v. Steven Brothers,
Inc. (1990) 222 Cal.App.3d 1585, 1593-1594.) Nevertheless, the ruling was correct.
In March 2010, pursuant to Public Resources Code section 21167.6, subdivision
(c), the County stipulated to entry of an order by the trial court extending the time for
preparing, certifying and lodging the administrative record. That statute provides for an
extension ―only upon the stipulation of all parties who have been properly served in the
action or proceeding or upon order of the court.‖ (Ibid.)
The County‘s action of agreeing in writing that the court had authority to enter an
order extending the record preparation deadline constituted a general appearance. A
general appearance waives any irregularities and is equivalent to personal service of the
summons on a party. (Code Civ. Proc., § 410.50.) The list of acts constituting an
appearance set forth in Code of Civil Procedure section 1014 (e.g., answering, demurring,
moving to strike or transfer) is not exclusive. Instead, the determining factor is
― ‗whether defendant takes a part in the particular action which in some manner
recognizes the authority of the court to proceed.‘ [Citation.]‖ (Hamilton v. Asbestos
Corp. (2000) 22 Cal.4th 1127, 1147.)
Here, the County took part in the action by stipulating in writing to an order
granting Sierra Club a 60-day extension to prepare the administrative record. That action
acknowledged the authority of the court to grant the extension and foreshadowed
certification of the record by the County so that a certified record could be lodged with
the court, a necessary precondition for a hearing. As such, the action constituted a
general appearance and waived all irregularities.
B. No Map Act Conflict
Sierra Club is adamant that the Ordinance violates the Map Act by negating its
limited exemption for lot line adjustments. This essentially is a claim that section
8
66412(d) preempts the local lot line adjustment Ordinance because the Ordinance facially
conflicts with the statutory exclusion. Not so.
Section 66412(d) states that the Map Act shall be inapplicable to ―[a] lot line
adjustment between four or fewer existing adjoining parcels, where the land taken from
one parcel is added to an adjoining parcel, and where a greater number of parcels than
originally existed is not thereby created, if the lot line adjustment is approved by the local
agency, or advisory agency. A local agency or advisory agency shall limit its review and
approval to a determination of whether or not the parcels resulting from the lot line
adjustment will conform to the local general plan, any applicable specific plan, any
applicable coastal plan, and zoning and building ordinances. An advisory agency or local
agency shall not impose conditions or exactions on its approval of a lot line adjustment
except to conform to the local general plan, any applicable specific plan, any applicable
coastal plan, and zoning and building ordinances, to require the prepayment of real
property taxes prior to the approval of the lot line adjustment, or to facilitate the
relocation of existing utilities, infrastructure, or easements. No tentative map, parcel
map, or final map shall be required as a condition of approval of a lot line adjustment. . . .
The lot line adjustment shall be reflected in a deed, which shall be recorded.‖
A municipality such as the County ―may make and enforce within its limits all
local, police, sanitary, and other ordinances and regulations not in conflict with general
laws.‖ (Cal. Const., art. XI, § 7.) It is this constitutional police power which confers on
municipalities the authority to enact land use regulations and control their own land use
decisions. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d
582, 604.) Under the police power, municipalities ―have plenary authority to govern,
subject only to the limitation that they exercise this power within their territorial limits
and subordinate to state law. [Citation.] . . . [¶] If otherwise valid local legislation
conflicts with state law, it is preempted by such law and is void.‖ (Candid Enterprises,
Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.) Facial
challenges to legislation are the most difficult to successfully pursue because the
challenger must demonstrate that ― ‗ ― no set of circumstances exists under which the
9
[law] would be valid.‖ ‘ [Citation.]‖ (T.H. v. San Diego Unified School Dist. (2004) 122
Cal.App.4th 1267, 1281.) Thus, the moving party must establish that the challenged
legislation inevitably is in total, fatal conflict with applicable prohibitions. (Ibid.)
When local municipalities regulate in areas over which they traditionally have
exercised control, our courts presume, absent a clear preemptive intent from the
Legislature, that such regulation is not preempted by state law. (Big Creek Lumber Co. v.
County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.) Local land use regulations conflict
with general laws and are void if the local legislation duplicates, contradicts, or enters an
area occupied fully by the general law. Local legislation is contradictory to general law
when it is inimical to it. (Id. at p. 1150.)
The Ordinance does not conflict with section 66412(d). First, according to the
plain, clear and unambiguous language of the statute, the Legislature has excluded from
the Map Act lot line adjustments meeting the following criteria: (1) the adjustment is
between four or fewer parcels; (2) the parcels must be adjoining; (3) the adjustment does
not result in more parcels than originally existed; and (4) the lot line adjustment is
approved by the local agency. The Ordinance‘s inclusion of sequential lot line
adjustments within the definition of a ―lot line adjustment‖ does not run afoul of any of
these criteria and hence should likewise be exempt from the Map Act. Sequential lot line
adjustments are only allowed in cases where a prior adjustment involving four or fewer
adjoining parcels has been completed and approved; no new parcels have been created;
and deeds reflecting the adjustment have been recorded prior to any sequential lot line
application being filed.
Second, Sierra Club‘s insistence that the County distorts the plain language of the
statute by inserting the word ―application‖ into it is not persuasive. The County is not
―inserting‖ the term ―application‖ into the statute. Rather, the term ―sequential lot line
adjustment‖ is defined in part with reference to the timing of a sequential lot line
application. Timing is important because there will be no sequential lot line adjustment
or application for the same unless the prior adjustment has been completed and deeds
have been recorded reflecting the initial adjustment. This issue of timing comports with
10
section 64412(d), notably the requirement that qualifying adjustments pertain to existing
adjoining parcels and the directive that the adjustment be reflected in a recorded deed.
To make its point, Sierra Club declares: ―To adjust the boundaries of 16 parcels
by submitting four applications affecting four parcels each is gamesmanship. A
straightforward reading of the statute requires the County to disregard such artifice, and
look instead at the aggregate number of parcels whose boundaries are to be adjusted.‖
(Fn. omitted.) There are several problems with this statement. First, four applications
affecting four parcels each would not be submitted at the same time. Rather, each
application would have to result in recorded deeds and the approval standards for the
adjustment would have to be met, including that the adjustment will not result in a
nonbuildable parcel becoming buildable,8 parcels will not be reduced below certain
minimum standards, and the like. (Napa County Code, § 17.46.040.) More to the point,
Sierra Club illustrates its argument with an as applied example, but its attack on the
Ordinance is facial.9 The challenger mounting a facial attack must show that the
defective regulation presently poses a total and fatal conflict. (T.H. v. San Diego Unified
School Dist., supra, 122 Cal.App.4th at p. 1281; see Association of California Ins. Cos. v.
Poizner (2009) 180 Cal.App.4th 1029, 1054.) Sierra Club cannot meet this burden. In
any event, we are not reviewing the approval of the proffered illustration, and surmise
that a variety of attacks on purported gamesmanship might be available.
Next, Sierra Club prods us to review the legislative history, which it maintains
evinces an unmistakable intent to curtail the scope of the exemption. In essence appellant
suggests section 66412(d) is ambiguous in light of the Ordinance, because the statute is
silent on the matter of sequential lot line adjustments. As the trial court did, in an
abundance of caution we will take a look at that history.
8 To be considered buildable, a parcel must meet the following criteria: (1) it must
contain a minimum of 2,400 square feet of net lot; (2) it must have existing access rights
to a public street; and (3) the parcel must contain a building site, by definition a minimum
of 25 feet wide and 25 feet deep. (Napa County Code, § 17.46.040, subd. C.3.a.-c.)
9 The same can be said for the case law cited, which likewise involve as applied
challenges.
11
We begin with case law, namely San Dieguito Partnership v. City of San Diego
(1992) 7 Cal.App.4th 748, involving a prior iteration of the statute which exempted lot
line adjustments ― ‗between two or more existing adjacent parcels‘ ‖ with the proviso that
the adjustment not result in a greater number of parcels than originally existed. (Id. at
p. 751.) There, the owners sought reconfiguration of their nine parcels, five of which had
no frontage to a street, so all would have street frontage. The trial court found that the
exemption was intended only to apply to minor changes in parcel lines and there was a
limit to the number of lots that could be adjusted under the exemption. (Id. at p. 754.)
Reversing, the reviewing court held that the only numerical limitation on parcels that
could be included in a lot line adjustment is that the adjustment not result in the creation
of more parcels than originally existed, commenting that had the Legislature been
interested in limiting the number of parcels which could be subject to an adjustment, ―[i]t
surely would have been an easy task to attach such a limit . . . .‖ (Id. at p. 757.)
Such a limit came with the 2001 amendments to section 66412(d), limiting the
exemption to adjustments between four or fewer parcels. The enrolled bill memorandum
summarizes arguments in support of the amendments: ―This bill closes a loophole in the
[Map Act] that allows major subdivisions of land to occur without adequate local review.
This practice has resulted in inappropriate new development that does not comply with
local general planning, does not provide adequate infrastructure such as sewers and roads,
and does not meet affordable housing requirements of approved general plans.‖
(Enrolled Bill Mem. to Governor on Sen. Bill No. 497, Sept. 24, 2001.) Another report
further explained that developers and land speculators recently have ― ‗changed the
landscape‘ by exploiting loopholes in the . . . Map Act. Although many antiquated
parcels are inconsistent with minimum lot size and development requirements, lot line
adjustments are now used as an exception to the usual requirements for subdivision
approval in order to effectively ‗resubdivide‘ the property without providing
infrastructure or conforming to community land use plans. By this method, antiquated
subdivision owners reconfigure their parcels and make them buildable merely by
obtaining certificates of compliance and processing a lot line adjustment. . . . This allows
12
speculators to avoid not only the Map Act but also infrastructure, general plan, specific
plan, local coastal plan, and [CEQA] requirements that would otherwise apply.‖
(Governor‘s Office of Planning & Research, Enrolled Bill Rep. on Sen. Bill No. 497,
Oct. 3, 2001, p. 2, underscore omitted.) The report went on to state that the same ―end
run around state law and local regulations‖ occurred in new subdivisions, in which
developers would apply for lot line adjustments at some point that resulted in dramatic
impacts with significant environmental effect, with no CEQA review and the like. (Id. at
p. 3.)
Sierra Club intones that the Ordinance has ―reopened‖ the loophole that the
section 66412(d) amendments were intended to close, by folding sequential lot line
adjustments into the permissible lot line adjustments that are exempt from the Map Act.
The legislative history sampled above reveals that there were a number of concerns with
unchecked land reconfiguration through inappropriate lot line adjustments that
circumvented state and local review. However, we do not divine an intent to bring all
sequential lot line adjustments within the Map Act‘s ambit. The Ordinance does not
allow an endless stream of lots to be adjusted at one time, nor does it allow a
nonbuildable parcel to become buildable through the adjustment process. The
requirements that a landowner must obtain approval of adjustments of no more than four
adjoining lots at one time, then record the deeds reflecting those adjusted lots before
filing and processing another application, serve the purpose of deterring simultaneous
adjustment of unlimited parcels, while still fostering the benefits served by a simple lot
line adjustment process. The sequential lot line adjustment process set forth in the
Ordinance injects meaningful temporal constraints on larger scale lot line adjustments.
We concur with the trial court‘s conclusion that it was plausible the Legislature ―was
seeking to strike a balance for an appropriate pace of land reconfiguration through the use
of lot line adjustments, whether for potential development or otherwise. . . . [T]he
language of the 2001 amendment does dictate a slower rate of reconfigurations through
adjustments than could occur under the former language of the statute. Curtailing,
without prohibiting such lot line adjustments may well have been precisely the
13
legislature‘s intent in implementing the language it chose for the amendment. Certainly,
if the legislature had intended to bring all sequential lot line adjustments within the
purview of the Map Act, it easily could have used alternative language to make that
intention clear.‖ (Italics omitted.)
C. The Approval of Sequential Lot Line Adjustments under the Ordinance Is Not Subject
to CEQA
Sierra Club insists that the approval of a sequential lot line adjustment is a
discretionary act within the meaning of CEQA, and thus subject to the act‘s requirements.
We disagree.
1. Legal Framework
As a general matter, CEQA applies to all discretionary projects10 proposed or
approved by a public agency that do not fall within a statutory exemption. (Pub.
Resources Code, § 21080, subd. (a).) A ―[d]iscretionary project‖ is a project the approval
or disapproval of which requires exercise of judgment or deliberation, as contrasted with
situations in which the public agency merely determines whether the project conforms
with applicable statutes, ordinances or regulations. (Regs., § 15357.) CEQA will apply
where the public agency uses its judgment in deciding not only whether to approve, but
also how to carry out, a proposed project. (Id., § 15002, subd. (i).)
On the other hand, ministerial projects are exempt from CEQA requirements.
(Pub. Resources Code, § 21080, subd. (b)(1); Regs., § 15268, subd. (a).) Determining
what is ―ministerial‖ for CEQA purposes is most appropriately made by the public
agency involved in a particular decision, based on the agency‘s analysis of its own laws,
and each agency preferably should make this determination as part of its implementing
regulations or ordinances. (Regs., § 15268, subds. (a), (c).) Whether a particular agency
10 Under CEQA, a ―project‖ is ―an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect physical change
in the environment‖ that is undertaken or supported by a public agency or involves
issuance of an entitlement for use by a public agency. (Pub. Resources Code, § 21065.)
14
exercises discretionary or ministerial controls over a project ―depends on the authority
granted by the law providing the controls over the activity.‖ (Id., § 15002, subd. (i)(2).)
The term ―ministerial‖ refers to a public agency‘s decisions ―involving little or no
personal judgment by the public official as to the wisdom or manner of carrying out the
project. The public official merely applies the law to the facts as presented but uses no
special discretion or judgment in reaching a decision. A ministerial decision involves
only the use of fixed standards or objective measurements, and the public official cannot
use personal, subjective judgment in deciding whether or how the project should be
carried out.‖ (Regs., § 15369.)
2. Analysis
In keeping with the CEQA Guidelines, the Ordinance classifies lot line
adjustments as ministerial acts, as follows: ―The tentative approval of lot line
adjustments and subsequent review and approval of deeds are ministerial acts and not
subject to CEQA; except that the tentative approval of lot line adjustments are
discretionary and subject to CEQA when, (a) the lot line adjustment requires a variance
. . . ; or (b) is processed concurrent with a related application for a use permit or other
discretionary approval.‖ (Napa County Code, § 17.46.020.) Additionally, the County‘s
local procedures for implementing CEQA lists lot line adjustments among the approvals
―conclusively presumed to be ministerially exempt from the requirements of CEQA . . . .‖
Applications that comply with 12 specified standards are deemed to conform to
the general plan, any specific plan, and county zoning and building ordinances, and must
be approved.11 (Napa County Code, § 17.46.040, subd. C.) The only condition of
11 These standards include the following: (1) the lot line adjustment will result in
the transfer of not more than four existing, adjoining legal parcels; (2) the adjustment will
not result in a greater number of parcels than originally existed; (3) a nonbuildable parcel
will not be made buildable by the adjustment; (4) the lot line adjustment will not reduce
parcels that equal or exceed a minimum parcel size established by the applicable zoning
district or designated by the Ordinance below the pertinent minimum or set size, unless a
corresponding number of parcels that are (a) smaller than such minimum, (b) included
within the lot line adjustment and (c) located in the same zoning district will be increased
to exceed such minimum size; (5) subject to exception, the resultant parcel will not be
15
approval that the director of public works can impose is a deed condition to ensure that
standard (12) above is satisfied prior to recording the deed/s consummating the
adjustment. (Ibid.)
Sierra Club argues we should not pay any deference to the County‘s classification
of sequential lot line adjustments, but surely that is not the law. Otherwise, why would
the governing regulations acknowledge that the local public agency is the most
appropriate entity to determine what is ministerial, based on analysis of its own laws and
regulations, and urge that the agency make that determination in its implementing
regulations? (Regs., §§ 15022, subd. (a)(1)(B), 15268, subds. (a), (c).)
Sierra Club also maintains that CEQA requires individualized decisions
concerning lot line adjustments, decisions that are inherently discretionary. Appellant
misunderstands the distinction between discretionary and ministerial decisions. ―The
statutory distinction between discretionary and purely ministerial projects implicitly
recognizes that unless a public agency can shape the project in a way that would respond
to concerns raised in an [environmental impact report], or its functional equivalent,
environmental review would be a meaningless exercise.‖ (Mountain Lion Foundation v.
Fish & Game Com. (1997) 16 Cal.4th 105, 117; Health First v. March Joint Powers
Authority (2009) 174 Cal.App.4th 1135, 1143 (Health First).) Health First involved a
bisected or internally severed by a road previously dedicated for public use; (6) unless
waived by a granted variance, the resultant parcels will comply with all parcel design
provisions in the Zoning Ordinance; (7) the resultant parcels will have legal access to a
publicly maintained road, as shown on the application map; (8) no public utility easement
shown on a final or parcel map will be adversely affected by the adjustment; (9) the size
of an adjusted parcel that will use an individual sewage system must equal or exceed the
minimum parcel size established by the applicable code; (10) if the adjustment reduces a
parcel greater than 10 acres to less than 10 acres, the resulting parcel must be connected
to a public sewer or be suitable for an on-site sewage disposal system or qualify for such
system on an abutting parcel; (11) subject to exception, after recordation of the deed
consummating the adjustment, no recorded security interest will encumber only a portion
of any resulting parcel; and (12) the transfer of property from one parcel to the adjoining
parcel will not enable more parcels to be created through future subdivision than could
have been created through merger and resubdivision of the original parcels. (Napa
County Code, § 17.46.040, subd. C.)
16
challenge to the review of a grocer‘s design plan application for a large warehouse
distribution facility. Review of the plan entailed deciding whether the application was in
keeping with the requirements, fixed standards and proposed mitigation measures set
forth in the specific plan, the environmental impact report and the design guidelines. The
review team accomplished its mission by completing a checklist of 125 yes or no
questions. As such it exercised no discretion and instead acted ministerially. (Health
First, supra, at p. 1144.)
The ministerial/discretionary distinction has also been framed this way: ―As
applied to private projects, the purpose of CEQA is to minimize the adverse effects of
new construction on the environment. To serve this goal the act requires assessment of
environmental consequences where government has the power through its regulatory
powers to eliminate or mitigate one or more adverse environmental consequences a study
could reveal. Thus the touchstone is whether the approval process involved allows the
government to shape the project in any way which could respond to any of the concerns
which might be identified in an environmental impact report. And when is government
foreclosed from influencing the shape of the project? Only when a private party can
legally compel approval without any changes in the design of its project which might
alleviate adverse environmental consequences.‖ (Friends of Westwood, Inc. v. City of
Los Angeles (1987) 191 Cal.App.3d 259, 266-267, italics omitted (Friends of
Westwood).)
Following Friends of Westwood, the court in Leach v. City of San Diego (1990)
220 Cal.App.3d 389, 394-395 held that a municipality was not required to prepare an
environmental impact report before being permitted to draft water from a reservoir;
despite environmental consequences, the municipality had little or no ability to minimize
in any significant way the environmental damages that might be identified in the report.
As one reviewing court recently put it, quoting from a major treatise: ― ‗CEQA does not
apply to an agency decision simply because the agency may exercise some discretion in
approving the project or undertaking. Instead to trigger CEQA compliance, the discretion
must be of a certain kind; it must provide the agency with the ability and authority to
17
―mitigate . . . environmental damage‖ to some degree.‘ [Citations.]‖ (San Diego Navy
Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 934 (San
Diego Navy).)
Here, the Map Act exempts from discretionary reviews, exactions and conditions
those lot line adjustments that fit the specifications of section 66412(d). Local agency
review is expressly limited to determining whether the resulting lots will conform to the
local general plan, any applicable specific or coastal plan, and building and zoning
ordinances. (Ibid.) Section 66412 describes a prototypical ministerial approval process,
and indeed approval of a lot line adjustment application has been characterized as
involving ―only a ministerial decision,‖ as contrasted with a subdivision proposal.
(Loewenstein v. City of Lafayette (2002) 103 Cal.App.4th 718, 721.) In other words, ―the
regulatory function of the approving agency is strictly circumscribed by the Legislature in
a lot line adjustment, with very little authority as compared to the agency‘s function and
authority in connection with a subdivision.‖ (San Dieguito Partnership v. City of San
Diego, supra, 7 Cal.App.4th at p. 760.)
In keeping with section 66412(d), the procedure for approving lot line adjustments
under the Oridinance involves only ministerial acts unless a variance or use permit is
involved. The fixed approval standards delineate objective criteria or measures which
merely require the agency official to apply the local law—e.g, building and zoning code
provisions—to the facts as presented in a given lot line adjustment application. (Regs.,
§ 15369.) The approval process is one of determining conformity with applicable
ordinances and regulations, and the official has no ability to exercise discretion to
mitigate environmental impacts. (Id., § 15357; San Diego Navy, supra, 185 Cal.App.4th
at p. 934.)
Sierra Club cites La Fe, Inc. v. County of Los Angeles (1999) 73 Cal.App.4th 231
for the notion that lot line adjustments can affect development potential, and thus their
approval constitutes a project subject to CEQA. However, CEQA only applies to
discretionary projects, and we have determined that lot line adjustments under the
Ordinance entail only ministerial acts. The La Fe court found that lot line adjustments
18
constituted development under the Coastal Act that fell within the permit jurisdiction of
the California Coastal Commission, and as such the commission had jurisdiction to deny
the owner‘s application for a coastal development permit or waiver. (Id. at pp. 239-242.)
La Fe involved primarily the authority of a state agency—–the Coastal Commission—
over ―development‖ as defined distinctly in the Coastal Act to include ―any other division
of land, including lot splits . . . .‖ (Pub. Resources Code, § 30106.) The issue of
statutory interpretation posed by La Fe is thus inapposite to the case at hand. Further, the
lot line adjustment in question would have made all the lots accessible to a public street,
but the street could not facilitate adequate access to the lots by firefighting equipment.
On the other hand, the Ordinance would not allow such an outcome, because it prohibits
lot line adjustments that render a nonbuildable parcel buildable, and defines buildable as
including access rights to a public street. (Napa County Code, § 17.46.040, subd. C.)
Finally, it bears pointing out that the Ordinance did nothing to change existing
land use policies and regulations in the County‘s general plan and building and zoning
ordinances, and it in fact codified the County‘s existing, legal practice of allowing Map
Act, exempt sequential lot line adjustments that conform to other laws to be approved
ministerially. Thus the Ordinance does not enable any development beyond what already
is possible through existing land use policies and zoning laws.
III. DISPOSITION
In light of our conclusion that the approval of a lot line adjustment under the
Ordinance is a ministerial act and thus not subject to CEQA, we need not consider Sierra
Club‘s remaining CEQA arguments.
The judgment is affirmed. Parties to bear their own costs on appeal.
19
_________________________
Reardon, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Sepulveda, J.*
Sierra Club v. Napa County Board of Supervisors, A130980
* Retired Associate Justice of the Court of Appeal, First Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
20
Trial Court: Napa County Superior Court
Trial Judge: Hon. Francisca P. Tisher
Counsel for Appellant: Block, DeVincenzi & Zelazny
Kevin P. Block
Counsel for Respondents: Robert Westmeyer
County Counsel
Laura J. Anderson
Deputy County Counsel
Miller Starr Regalia
Arthur F. Coon
Counsel for Amicus Curiae on
Behalf of Respondents: Allen Matkins Leck Gamble Mallory & Natsis
Michael Patrick Durkee
David H. Blackwell
Thomas P. Tunny
Sierra Club v. Napa County Board of Supervisors, A130980
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