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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&sectionNum=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 California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 3 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. California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 4 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. California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 5 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 California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 6 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. California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 7 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: California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 8 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. California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 9 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; California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 10 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. California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 11 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 California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 12 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 California Coastal Commission Appeal A-3-MCO-07-004 Burke Lot Line Adjustment Page 13 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 This Page Intentionally Left Blank