November 13, 2011

Boondoggle Explained

As posted previously, the Second + PCH Project will be up for approval at the November 17 Planning Commission meeting. City staff is recommending approval of the Site Plan Review, Tentative Tract Map, Standards Variance, and Local Coastal Development Permit.

There’s a whole lot wrong with this. 

First, as stated in Exhibit D, page 5 of the recently released Planning Commission staff report, “pursuant to [City code], the City shall not approve a Coastal Development Permit unless positive findings are made consistent with the criteria set forth in the Local Coastal Development Permit regulations." Got it. Criteria number 1 of these regulations states, "the proposed development conforms with the certified Local Coastal Program (LCP)..." Okay. So to be consistent with City code, the City must be able to say that, yes, the Project is consistent with the certified LCP. Got it. However, the City's response to this (Exhibit D, page 6, paragraph 3) is, "...the proposed development conforms to the recommended LCP text amendment."

The City seems to think that “certified LCP” and “recommended LCP text amendment” are equal and interchangeable terms. They are not; they are two separate concepts. The City makes (non legally binding) recommendations to the Coastal Commission, and it is the responsibility of the latter to change, or “certify,” the amendments to the LCP. Unless and until the Coastal Commission certifies the proposed LCP amendment revisions, the currently certified LCP is still in play. In this case, the currently certified LCP restricts building height to 35 feet and prohibits residential. The Project is not consistent with the certified LCP, and the City shouldn’t be making a positive finding that it is. Yet that is exactly what they are fixin to do. Not good.

Further, since the City can't change the zoning (rather, they make non binding recommendations as to how the zoning should be changed), what they will have practically done is approve a Project that is inconsistent with the current zoning, and then not then change the zoning to address this inconsistency. That isn't good either.

If, following approval by the City Council, someone sues to challenge the adequacy of the Environmental Impact Report (EIR), these issues can be folded, quite effectively, into the litigation. Defending the adequacy of the EIR will be challenging enough without adding all of this nonsense into mix. 

Secondly, page 4-5 of the City's October 12 Planning Commission staff report states, “the Coastal Commission will not approve a Coastal Development Permit for any project that conflicts with existing LCP standards. Only after the Coastal Commission approves the LCP amendment will it consider any Coastal Development Permit approval requests for a project that is consistent with the amended standards….. the applicant requests for [approvals] would therefore be postponed until after the LCP/SEADIP amendment process has been completed.” YES, that’s exactly right! The previous City staff report hit the nail on the head: delay project approvals until the LCP amendment process is finished as the Coastal Commission cannot approve the requested permit until after the amendment process concludes.

However, though the LCP amendment process is FAR from complete, the City is now recommending immediate approval of the Coastal Development Permit, with City Council approval tentatively scheduled for December 20. Huh? How did the City go from knowing the proper process a month ago to doing a complete 180 and totally losing the plot a short time later? The City doesn't provide a rationale as to why they have entirely flip flopped their position. This is especially concerning since this new-found path does nothing more than put approval of the Coastal Development Permit in serious jeopardy at the Coastal Commission. 

None of this makes much sense. There are some serious, substantial issues here that need to get dealt with, and it would seem as though the City's desired approach in recommending immediate approval is to "kick the can down the road." Why? Why approve a permit if it won't get upheld by the subsequent decision making body? And why set the legal wheels in motion giving anyone who sues such powerful ammunition? Why? The November 17 Planning Commission hearing should be delayed until there is some resolution to the fairly substantial problems present with approving the project in this fashion.