Legal Alerts Mar 15, 2018

Defining “Existing” Structures in Sea Rise Shoreline Protection

California Coastal Commission and City of San Clemente Reach LUP Agreement

Defining “Existing” Structures in Sea Rise Shoreline Protection

Disagreement over the definition of the word “existing” in discussion over shoreline protection took center stage in the City of San Clemente’s Coastal Land Use Plan update. Ultimately, the California Coastal Commission unanimously certified the City’s LUP at its Feb. 8 meeting in Cambria. The LUP and implementation plan make up a city’s local coastal program. Up to the certification hearing, City and Commission staff worked closely to resolve a series of important issues, so that Commission staff could recommend a LUP update that the Commission could certify and the City Council could adopt. At the start of the hearing, all issues were resolved except one: the meaning of the word “existing.”
The Commission staff sought to introduce a new definition of “existing” in the context of shoreline protection that would limit the rights of property owners. Protective devices, such as revetments and retaining walls, stabilize and protect shoreline development from erosion. Although protective devices can have adverse impacts to the coast, Coastal Act section 30235 provides that protective devices “shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion.”
Commission staff’s definition of “existing” would narrow the application of  section 30235. Relying on 2015 Sea Level Rise Guidance, the Commission staff defined “existing” structures as structures that were “legally permitted prior to the effective date of the Coastal Act (Jan. 1, 1977)." Elsewhere in the Coastal Act, “existing” is understood to mean that the structure is currently existing at the time of permit application or other relevant action.
The City opposed inclusion of the Commission staff’s “pre-Coastal Act” definition and requested that the Commission certify the LUP update without the Coastal Commission staff’s definition or any other definition of “existing,” leaving the definition to the current body of statutory law and commission regulations. Further detailed in its response letter to the Commission (see below), the City argued that:

  • First, the definition is inconsistent with the Coastal Act and Commission practices. For example, in 2006, the Commission argued in an appellate court that the “pre-Coastal Act” definition of “existing” was without merit and the “currently existing” definition of “existing” is necessary to harmonize section 30235 with other provisions of the Coastal Act. In other words, the Commission staff’s position on the LUP was contrary to its 2006 stance.
  • Second, LUP certification is not the proper forum to address this issue. A new definition of “existing” in the context of section 30235 would have ramifications beyond the San Clemente LUP. The “pre-Coastal Act” definition of “existing” would limit shoreline protection rights only to owners with properties permitted before Jan. 1, 1977, which means that owners with properties built in the last four decades would be denied rights to shoreline protection.

Third, the “pre-Coastal Act” definition of “existing” is not required for certification of an LUP. In fact, the Commission had certified other LCPs without the “pre-Coastal” or any other definition of “existing.” 

After hearing from San Clemente’s residents, mayor, city manager, community development director and Commission staff, the Commission engaged in significant discussion on the issue. The Commission ultimately voted to certify the LUP without a definition of “existing,” with the intention of returning to the issue during the Commission’s review of the City’s Implementation Plan.
Certification of the LUP represents a major milestone in the City’s efforts toward a fully certified local coastal program and is the culmination of several years’ work by the residents, City staff, the Planning Commission and the City Council to ensure that the City’s coastal planning and development policies best serve San Clemente’s community and resources.
The Coastal Act calls for coastal jurisdictions to prepare an LCP for certification by the Coastal Commission. Once a city has a fully certified LCP, permitting authority for development in the coastal zone is transferred from the Coastal Commission to the city. An LCP has two components: an LUP and an implementation plan. The LUP is part of a city’s general plan and includes a land use map and policies that address land use, public access to the coast, coastal resources, coastal hazards and other issues concerning development in the coastal zone. The IP is part of a city’s zoning code and includes a zoning map, ordinances and permit procedures to implement the policies of the LUP and the Coastal Act.
San Clemente’s LUP was initially certified in 1988 and was updated in 1995. With certification of the 2018 LUP update, the City will submit its IP to the Commission for review later this year.
The video of the Feb. 8 Coastal Commission hearing can be viewed by clicking here. The LUP hearing begins at the 1:38:25 mark and Commission discussion begins at 3:14:00.
The City’s Feb. 2 letter to the Commission can be viewed in the correspondence file for hearing item 12 on the meeting agenda by clicking here.
Best Best & Krieger LLP represented the City in these proceedings.
For more information on this issue and how it may impact your city or agency, please contact the author of this Legal Alert to the right in the firm’s California Coastal Act practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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