City of Dana Point, CA Chapter 9.27 COASTAL OVERLAY DISTRICT

§ 9.27.010 Intent and Purpose.

The Coastal Overlay (CO) District preserves and protects the coastal resources within Dana Point, and implements the California Coastal Act (Division 20 of the Public Resources Code) and the General Plan coastal policies which constitute the Land Use Plan portion of the certified Local Coastal Program for the City of Dana Point. The CO District is an overlay district which shall be combined with any other zoning district that lies within the Coastal Zone of the City of Dana Point. A Coastal Development Permit, subject to the standards of the specific zoning designation is required for all "development", as defined in Section 9.75.040. Procedures and regulations in Chapter 9.61 "Administration of Zoning", Chapter 9.69 "Coastal Development Permit" and this Chapter constitute additional minimum standards for all development within the Coastal Zone. In the Coastal Overlay District, the standards in this Chapter shall take precedence over other standards in the Zoning Code. The standards in this Chapter shall be applied in a manner which is most protective of coastal resources and public access.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 97-05, 9/9/97)

§ 9.27.020 Permitted, Accessory and Conditional Uses.

Permitted, accessory, temporary and conditional uses within the Coastal Overlay district are the same uses as those allowed within the underlying base zoning districts, with the exceptions listed below. Refer to Chapter 9.69 for Coastal Development Permit requirements.

(a) Beach area development in areas other than the Residential Beach Road 12 (RBR 12) and Residential Beach Road Duplex 18 (RBRD 18) Districts, is limited to public lifeguard towers, public restrooms, public piers, shoreline protective works, public access structures, campgrounds, beach concessions, and recreational equipment;

(b) The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes shall be permitted where there is no feasible less environmentally damaging alternative and where feasible mitigation measures have been provided to minimize adverse environmental effects, and shall be limited to the following:

(1) New or expanded port, energy, and coastal-dependent industrial facilities, including commercial fishing facilities.

(2) Maintaining existing, or restoring previously dredged, depths in existing navigational channels, turning basins, vessel berthing and mooring areas, and boat launching ramps.

(3) In wetland areas only, entrance channels for new or expanded boating facilities; and in a degraded wetland, identified by the Department of Fish and Game pursuant to subdivision (b) of Section 30411 of the California Coastal Act as amended, for boating facilities if, in conjunction with such boating facilities, a substantial portion of the degraded wetland is restored and maintained as a biologically productive wetland. The size of the wetland area used for boating facilities, including berthing spaces, turning basins, necessary navigation channels, and any necessary support service facilities, shall not exceed 25 percent of the degraded wetland.

(4) In open coastal waters, other than wetlands, including streams, estuaries, and lakes, new or expanded boating facilities and the placement of structural pilings for public recreational piers that provide public access and recreational opportunities.

(5) Incidental public service purposes, including but not limited to, burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines.

(6) Mineral extraction, including sand for restoring beaches, except in environmentally sensitive habitat areas.

(7) Restoration purposes.

(8) Nature study, aquaculture, or similar resource dependent activities.

(c) Coastal bluffs are limited to public coastal access or public park structures, bluff repair, and erosion control projects and structures that may include retaining and non-retaining walls, fences, and landscaping.

(d) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas.

(e) Any use or development in conflict with the General Plan coastal policies shall not be allowed.

(f) Public Recreation. Salt Creek County Beach Park shall be a public park which is primarily geared towards passive recreational use. Limited active recreational use or educational use may be permitted provided the use is temporary, as defined in Coastal Commission guidelines for temporary events;

(Added by Ord. 93-16, 11/23/93; amended by Ord. 97-05, 9/9/97)

§ 9.27.030 Development Standards.

In addition to the development standards for the base zoning districts described in Chapters 9.09-9.25, the following standards apply to all applicable projects within the CO District.

(a) Coastal Access.

(1) The purpose of this section is to achieve the basic state goals of maximizing public access to the coast and public recreational opportunities, as set forth in the California Coastal Act; to implement the public access and recreation policies of Chapter 3 of the Coastal Act; and to implement the certified land use plan of the Local Coastal Program which is required by Section 30500(a) of the Coastal Act to include a specific public access component. In achieving these purposes, the provisions of this subsection shall be given the most liberal construction possible so that public access to the navigable waters shall always be provided and protected consistent with the goals, objectives and policies of the California Coastal Act and Article X, Section 4, of the California Constitution.

(2) Definitions.

(A)

New development.

For purposes of implementing the public access requirements of Public Resources Code Section 30212, the City of Dana Point certified land use plan, including Land Use Element Policy 3.12, and of this ordinance, "new development" includes "development" as defined in Section 9.75.040 of this zoning code except the following:

1. Structures destroyed by natural disaster. The replacement of any structure, other than a public works facility, destroyed by a disaster; provided that the replacement structure conforms to applicable existing zoning requirements, is for the same use as the destroyed structure, does not exceed either the floor area, height, or bulk of the destroyed structure by more than 10%, and is sited in the same location on the affected property as the destroyed structure. As used in this section, "disaster" means any situation in which the force or forces which destroyed the structure to be replaced were beyond the control of the owners.

2. Demolition and Reconstruction. The demolition and reconstruction of a single-family residence; provided that the reconstructed residence shall not exceed either the floor area, height or bulk of the former structure by more than 10 percent, and that the reconstructed residence shall be sited in the same location on the affected property as the former structure.

3. Improvements. Improvements to any structure which do not change the intensity of its use, which do not increase either the floor area, height or bulk of the structure by more than 10 percent, which do not block or impede access, and which do not result in a seaward encroachment by the structure.

4. Repair and Maintenance. Repair or maintenance activity which, pursuant to Public Resources Code Section 30610, requires no permit unless the activity will have an adverse impact on lateral public access along the beach.

5. Reconstruction and Repair. The reconstruction or repair of any seawall; provided that the reconstructed or repaired seawall is not seaward of the location of the former structure. As used in this section, "reconstruction or repair" of a seawall shall not include replacement by a different type of structure or other modification in design or construction which results in different or greater impacts to shoreline resources than those of the existing structure.

(B) The five types of coastal public access (lateral, bluff top, vertical, trail, and recreational) are defined in Section 9.75.030 of this Zoning Code.

(C)

Character of accessway use.

1. 

Pass and repass.

Refers to the right of the public to walk and run along an accessway. Because this use limitation can substantially restrict the public's ability to enjoy adjacent publicly owned tidelands by restricting the potential use of lateral accessways, it will be applied only in connection with vertical access or other types of access where the findings required by Sections 9.27.030(a)(5) and 9.27.030(a)(5)(D) establish that the limitation is necessary to protect natural habitat values, topographic features (such as eroding bluffs), or privacy of the landowner.

2. 

Passive recreational use.

As used in this section, "passive recreational use" refers to the right of the public to conduct activities normally associated with beach use, such as walking, swimming, jogging, sunbathing, fishing, surfing, picnicking, but not including organized sports, campfires, or vehicular access other than for emergencies or maintenance.

3. 

Active recreational use.

As used in this section, "active recreational use" refers to the right of the public to conduct the full range of beach-oriented activities, not including horseback riding and use of motorized vehicles unless specifically authorized.

(3) Applicability.

(A) Access Required. As a condition of approval and prior to issuance of a permit or other authorization for any class of new development as identified in Sections 9.27.030(a)(3)(A)1. through 9.27.030(a)(3)(A)4. below, except as provided in Section 9.27.030(a)(3)(B), an offer to dedicate an easement (or other legal mechanism pursuant to Section 9.27.030(a)(4)(J)2. for one or more of the types of access identified in Sections 9.27.030(a)(2)(D)1. through 9.27.030(a)(2)(D)5. shall be required and shall be supported by findings required by Sections 9.27.030 (a)(5)(A) through 9.27.030(a)(5)(C); provided that no such condition of approval for coastal access shall be imposed if the analysis required by Sections 9.27.030(a)(5)(A)1. through 9.27.030(a)(5)(A)4. establishes that the development will not adversely affect, either individually or cumulatively, the ability of the public to reach and use public tidelands and coastal resources or that the access dedication requirement will not alleviate the access burdens identified.

1. New development on any parcel or location specifically identified in the certified land use plan or in the LCP zoning districts.

2. New development between the nearest public roadway and the sea.

3. New development on any site where there is substantial evidence of a public right of access to the sea acquired through use or a public right of access through legislative authorization.

4. New development on any site where trail, blufftop access or other recreational access is necessary to mitigate impacts of the development on public access.

(B) Exceptions. Section 9.27.030(a)(3)(A) above shall apply to all new development except in the following instances:

1. Projects excepted from the definition of "new development" in Section 9.27.020(a)(2).

2. Where findings required by Sections 9.27.030(a)(5)(A) and 9.27.030(a)(5)(B) establish any of the following:

a. Public access is inconsistent with the public safety, military security needs, or protection of fragile coastal resources; or

b. Adequate access exists nearby.

(C) Exceptions identified in Section 9.27.030(a)(3)(B) shall be supported by written findings required by Section 9.27.030(a)(5)(C) of this Chapter.

(4) Standards For Application Of Access Conditions. The public access required pursuant to Section 9.27.030(a)(3)(A) shall conform to the standards and requirements set forth in Section 9.27.030(a)(4) herein.

(A) Lateral Public Access (Minimum Requirements).

1. A condition to require lateral access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of lateral public access and passive recreational use along the shoreline (or public recreational area, bikeway, or blufftop area, as applicable); provided that in some cases controls on the time, place and manner of uses may be justified by site characteristics including sensitive habitat values or fragile topographic features, or by the need to protect the privacy of residential development located immediately adjacent to the accessway.

2. Active recreational use may be appropriate in many cases where the development is determined to be especially burdensome on public access. Examples include cases where the burdens of the proposed project would severely impact public recreational use of the shoreline, where the proposed development is not one of the priority uses specified in Public Resources Code Section 30222 and the policies of the certified land use plan, where active recreational uses reflect the historic public use of the site, where active recreational uses would be consistent with the use of the proposed project, and where such uses would not significantly interfere with the privacy of the landowner. In determining the appropriate character of public use, findings shall be made on the specific factors enumerated in Section 9.27.030(a)(5)(B). Lateral access shall be legally described as required in Section 9.27.030(a)(4)(G).

(B) Vertical Public Access (Minimum Requirements).

1. A condition to require vertical public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of access, either (1) located in specific locations identified in the certified Local Coastal Program for future vertical access, or (2) located in a site for which the City of Dana Point has reviewed an application for a development permit and has determined a vertical accessway is required pursuant to the access and recreation policies of the Coastal Act or the applicable provisions of the Local Coastal Program.

2. A condition to require vertical access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of vertical access and be limited to the public right of passive recreational use unless another character of use is specified as a condition of the development. In determining whether another character of use is appropriate, findings shall be made on the specific factors identified in Section 9.27.030(a)(5)(B).

3. Each vertical accessway shall extend from the road to the shoreline (or bluff edge) and shall be legally described as required in Section 9.27.030(a)(4)(G). The access easement shall be a minimum of 10 feet wide. If a residential structure is proposed, the accessway should not be sited closer than 10 feet (or another distance if specified in the certified land use plan) to the structure.

(C) Bluff Top Access (Minimum Requirements).

1. A condition to require public access along a bluff top as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of scenic and visual access from the bluff top to the public tidelands; provided that in some cases controls on the time, place and manner of uses may be justified by site characteristics including sensitive habitat values or fragile topographic features, or by the need to protect the privacy of residential development located immediately adjacent to the accessway.

2. The bluff top access shall be limited to passive recreational use and coastal viewing purposes unless another character of use is specified as a condition of development. In determining the appropriate character of use findings shall be made on the specific factors identified in Section 9.27.030(a)(5)(B).

3. Each bluff top accessway shall be described in the conditions of approval of the coastal development permit as an area beginning at the current bluff edge extending 25 feet inland, or an area which allows for 50 years of bluff erosion, or another standard determined to be necessary for public safety and/or geologic stability, whichever results in the greatest width of the bluff top accessway. However, the accessway shall not extend any closer than 10 feet from an occupied residential structure. Due to the potential for erosion of the bluff edge, the condition shall include a mechanism that will cause the accessway to be adjusted inland as the edge recedes. Any permanent improvements should be set back from the accessway by a distance derived by multiplying the annual rate of blufftop retreat by the life expectancy in years of the permanent improvements.

4. The accessway shall be legally described as required in Section 9.27.030(a)(4)(G), with the furthest inland extent of the area possible referenced as a distance from a fixed monument in the following manner:

"Such easement shall be [insert appropriate distance as described in Section 9.27.030(a)(4)(C)3. above] feet wide located along the bluff top as measured inland from the daily bluff edge. As the daily bluff top edge may vary and move inland, the location of this right-of-way will change over time with the then current bluff edge, but in no case shall it extend any closer than [specify distance] feet from [specify a fixed inland point, such as for example the centerline of the nearest public road]."

(D) Trail Access (Minimum Requirements). A condition to require public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) required pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of access and active recreational use, either (1) along a designated alignment of a coastal recreational path or trail in specific locations including those identified in the certified LCP for implementation of trail access, or (2) in locations where it has been determined that a trail access is required to link recreational areas to the shoreline or provide alternative recreation and access opportunities pursuant to the access and recreation policies of the LCP and Coastal Act, consistent with other provisions of this chapter; provided that in some cases controls on the time, place and manner of uses may be justified by site characteristics including sensitive habitat values or fragile topographic features, or by the need to protect the privacy of residential development located immediately adjacent to the accessway. In determining if another character of use is appropriate, findings shall be made on the specific factors enumerated in Section 9.27.030(a)(5)(B). The trail access shall be legally described as required by Section 9.27.030(a)(4)(G).

(E) Recreational Access (Minimum Requirements). A condition to require public recreational access as a condition of approval of a coastal development permit required pursuant to Section 9.27.030(a)(3)(A) shall provide the public with the permanent right of access and use within a designated recreational access area. Conditions required pursuant to this section shall specify the location and extent of the public access area. The form and content should take the form of requirements in Sections 9.27.030(a)(4)(A), 9.27.030(a)(4)(B), 9.27.030(a)(4)(C), and 9.27.030(a)(4)(D) as applicable. The accessway shall be legally described as required in Section 9.27.030(a)(4)(G).

(F) Protection of Historic Public Use.

1. Substantial Evidence Determination. Substantial evidence that the area used by the public has been impliedly dedicated shall be determined based on evidence of all of the following:

a. The public must have used the land for a period of five years or more as if it were public land,

b. Without asking for or receiving permission from the owner,

c. With the actual or presumed knowledge of the owner,

d. Without significant objection or bona fide attempts by the owner to prevent or halt the use, and

e. The use must be substantial, rather than minimal, and

f. The applicant must not have demonstrated that the law has prevented the property from being impliedly dedicated.

2. Siting and Design Requirements. Development shall be sited and designed in a manner which does not interfere with or diminish any public right of access which may have been established based on historic public use. Only when site constraints are so severe that siting of the accessway or recreational use area in its historic location would significantly impair the proposed development and alternative development siting is not feasible, development may be sited in the area of public right of access based on historic use provided that the applicant provides an equivalent area of public access or recreation to and along the same destination and including the same type and intensity of public use as previously existed on the site. Mechanisms for guaranteeing the continued public use of the area or equivalent area shall be required in accordance with Sections 9.27.030(a)(4)(A) through 9.27.030(a)(4)(E) above.

3. Minimum Requirements. An access condition shall not serve to extinguish or waive public prescriptive rights. In permits where evidence shows the possibility of such prescriptive rights, the following language shall be added to the access condition:

"Nothing in this condition shall be construed to constitute a waiver of any prescriptive rights which may exist on the parcel itself or on the designated easement."

(G) Legal Description of an Accessway (Recordation).

1. An access dedication required pursuant to Section 9.27.030(a)(3)(A) shall be described in the condition of approval of the permit in a manner that provides the public, the property owner, and the accepting agency with the maximum amount of certainty as to the location of the accessway. As part of the condition of approval, easements shall be described as follows:

a. for lateral access: along the entire width of the property from the mean high tide line to (as applicable): the toe of the bluff, the toe of the seawall, or other appropriate boundary such as structural and patio stringlines as described in Section 9.09.040(a)(1) of this Zoning Code (the Residential Beach Road 12 (RBR 12) and Residential Beach Road Duplex 18 (RBRD) Zoning Districts).

b. for blufftop access or trail access; extending inland from the bluff edge or along the alignment of a recreational trail.

c. for vertical access: extending from the road to the shoreline (or bluff edge). A privacy buffer provided pursuant to Section 9.27.030(a)(4)(I) shall be described, as applicable.

2. Prior to the issuance of the coastal development permit, the landowner shall execute and record a document in a form and content acceptable to the Director of Community Development, consistent with provisions of Section 9.27.030(a)(6), irrevocably offering to dedicate to a public agency, non-profit organization, or private association approved by the Coastal Commission an easement for a specific type of access as described in Section 9.27.030(a)(2)(D) and a specific character of use as described in Section 9.27.030(a)(2)(E), as applicable to the particular condition.

3. The recorded document shall provide that the offer to dedicate shall not be used or construed to allow anyone, prior to acceptance of the dedication, to interfere with any rights of public access acquired through use which may exist on the property.

4. The recorded document shall include legal descriptions of both the applicant's entire parcel and the easement area and a map to scale. The offer shall be recorded free of prior liens and any other encumbrances which the Coastal Commission [or local agency authorized by the Commission] determines may affect the interest being conveyed. The offer to dedicate shall run with the land in favor of the People of the State of California, binding all successors and assignees, and shall be irrevocable for a period of 21 years, such period running from the date of recording.

(H) Management Plan (Minimum Requirements). A management plan may be required in conjunction with a dedication of public access in any case where there is substantial evidence of potential conflicts between public access use and other uses on or immediately adjacent to the site. Examples include access in areas of sensitive habitats, agricultural resources, or significant hazards, or adjoining residential neighborhoods or military security areas. The plan shall be prepared by the accepting agency and approved by the City of Dana Point prior to the opening of the access to public use. Where applicable, the plan should specify management controls on time and intensity of use, standards for privacy buffers, and requirements for maintenance of aesthetic values through such measures as litter control.

(I) Privacy Buffers (Minimum Requirements). Separation between a public accessway and adjacent residential use may be provided when necessary to protect the landowner's privacy or security as well as the public's right to use of the accessway. Any such buffer shall be provided within the development area. Access should not be sited closer to any residential structure than the distance specified in the certified LUP amendment, or where there is no distance specified, no closer than 10 feet. The buffer can be reduced where separation is achieved through landscaping, fences or grade separation.

(J) Implementation.

1. A dedicated accessway shall not be required to be opened to public use until a public agency, non-profit organization, or private association approved in accordance with Section 9.27.030(a)(4)(G) agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction.

2. In any case where the size and character of a development would impose very substantial burdens on public access, such as a large resort development on the shoreline, and where the applicant has the capacity to operate and maintain the accessway or recreation area, a deed restriction may be required instead of an offer to dedicate in order to assure immediate public use of the area and maintenance of the area by the applicant and successors in interest. In any such case, all other applicable provisions of this ordinance shall apply.

3. Access facilities constructed on access easements (e.g., walkways, paved paths, boardwalks, etc.) should be no wider than necessary to accommodate the numbers and types of users that can reasonably be expected. Width of facilities can vary for ramps or paved walkways, depending on site factors such as the need for privacy buffers, public safety needs, and the need to protect natural resource areas from overuse.

(K) Title Information. As a requirement for any public access condition, prior to the issuance of the permit or other authorization for development, the applicant shall be required to furnish a title report and all necessary subordination agreements. Title insurance may also be required where easements are being granted. The amount of insurance shall reflect the estimated cost to acquire an equivalent accessway or recreational use elsewhere in the vicinity. All offers shall be made free of all encumbrances which the approving authority pursuant to Section 9.27.030(a)(4)(G) determines may affect the interest being conveyed. If any such interest exists which could erase the access easement, it must be subordinated through a written and recorded agreement.

(5) Required Findings And Supporting Analysis For Public Access Dedications.

(A) Required Overall Findings. Written findings of fact, analysis and conclusions addressing public access must be included in support of all approvals, denials or conditional approvals of projects between the first public road and the sea (whether development or new development) and of all approvals or conditional approvals of projects (whether development or new development) where an access dedication is included in the project proposal or required as a condition of approval. Such findings shall address the applicable factors identified by Section 9.27.030(a)(5)(B) and 9.27.030(a)(5)(C) and shall reflect the specific level of detail specified, as applicable. Findings supporting all such decisions shall include:

1. A statement of the individual and cumulative burdens imposed on public access and recreation opportunities based on applicable factors identified pursuant to Section 9.27.030(a)(5)(B). The type of affected public access and recreation opportunities shall be clearly described.

2. An analysis based on applicable factors identified in Section 9.27.030(a)(5)(B) and 9.27.030(a)(5)(C) of the necessity for requiring public access conditions to find the project consistent with the public access provisions of the Coastal Act.

3. A description of the legitimate governmental interest furthered by any access condition required.

4. An explanation of how imposition of a public access dedication requirement alleviates the access burdens identified and is reasonably related to those burdens in both nature and extent.

(B) Required Project-Specific Findings. In determining any requirement for public access, including the type of access and character of use, the City of Dana Point shall evaluate and document in written findings the factors identified in Sections 9.27.030(a)(5)(B)1. through 9.27.030(a)(5)(B)4. below, to the extent applicable. The findings shall explain the basis for the conclusions and decisions of the City of Dana Point and shall be supported by substantial evidence in the record. If an access dedication is required as a condition of approval, the findings shall explain how the dedication will alleviate or mitigate the adverse effects which have been identified and is reasonably related to those adverse effects in both nature and extent. As used in this section, "cumulative effect" means the effect of the individual project in combination with the effects of past projects, other current projects, and probable future projects, including development allowed under applicable planning and zoning. The following factors shall be analyzed:

1. Project Effects On Demand For Access And Recreation:

a. Identification of existing and open public access and coastal recreation areas and facilities in the regional and local vicinity of the development.

b. Analysis of the project's effects upon existing public access and recreation opportunities.

c. Analysis of the project's cumulative effects upon the use and capacity of the identified public access and recreation opportunities, including public tidelands and beach resources, and upon the capacity of major coastal roads from subdivision, intensification or cumulative buildout.

d. Projection of the anticipated demand and need for increased coastal access and recreation opportunities for the public.

e. Analysis of the contribution of the project's cumulative effects to any such projected increase.

f. Description of the physical characteristics of the site and its proximity to the sea, tideland viewing points, upland recreation areas, and trail linkages to tidelands or recreation areas.

g. Analysis of the importance and potential of the site, because of its location or other characteristics, for creating, preserving or enhancing public access to tidelands or public recreation opportunities.

2. Shoreline Processes (for accessways on sites subject to wave action, such as beachfront and coastal blufftop accessways):

a. Description of the existing shoreline conditions, including beach profile, accessibility and usability of the beach, history of erosion or accretion, character and sources of sand, wave and sand movement, presence of shoreline protective structures, location of the line of mean high tide during the season when the beach is at its narrowest (generally during the late winter) and the proximity of that line to existing structures, and any other factors which substantially characterize or affect the shoreline processes at the site.

b. Identification of anticipated changes to shoreline processes and beach profile unrelated to the proposed development.

c. Description and analysis of any reasonably likely changes, attributable to the primary and cumulative effects of the project, to wave and sand movement affecting beaches in the vicinity of the project; the profile of the beach; the character, extent, accessibility and usability of the beach; and any other factors which characterize or affect beaches in the vicinity.

d. Analysis of the effect of any identified changes of the project - alone or in combination with other anticipated changes - will have upon the ability of the public to use public tidelands and shoreline recreation areas.

e. The rate of blufftop erosion due to wave action as the base of the bluff.

4. Physical Obstructions: Description of any physical aspects of the development which block or impede the ability of the public to get to or along the tidelands, public recreation areas, or other public coastal resources or to see the shoreline.

5. Other Adverse Impacts On Access And Recreation:

a. Description of the development's physical proximity and relationship to the shoreline and any public recreation area.

b. Analysis of the extent to which buildings, walls, signs, streets or other aspects of the development, individually or cumulatively, are likely to diminish the public's use of tidelands or lands committed to public recreation.

c. Description of any alteration of the aesthetic, visual or recreational value of public use areas, and of any diminution of the quality or amount of recreational use of public lands which may be attributable to the individual or cumulative effects of the development.

(C) Findings for Projects Involving Historic Public Use/Prescriptive Rights:

1. Where an issue as to the existence of public prescriptive rights has been raised during the course of reviewing a coastal development permit application, one of the following findings shall be made:

a. Substantial evidence does not warrant the conclusion that public prescriptive rights exist;

b. Substantial evidence of public prescriptive rights exist, but development will not interfere with those rights;

c. There is an unresolved controversy as to the existence of public prescriptive rights which requires denial of a coastal development permit because of interference with those rights.

d. There is an unresolved controversy as to the existence of public prescriptive rights, but the applicant's dedication of a public access protects the rights of the public and allows an agreement to accept the actual dedication in exchange for giving up the contested claim of implied dedication.

2. In determining any requirement for public access based on historic public use/prescriptive rights, including the type of access and character of use, the City of Dana Point shall evaluate and document in written findings the factors identified in Sections 9.27.030(a)(5)(C)2.a. through 9.27.030(a)(5)(C)2.e. below, to the extent applicable. The findings shall explain the basis for the conclusions and decisions of the City of Dana Point and shall be supported by substantial evidence in the record. If an access dedication is required as a condition of approval, the findings shall explain how the dedication will alleviate or mitigate the adverse effects which have been identified and is reasonably related to those adverse effects in both nature and extent. As used in this section, "cumulative effect" means the effect of the individual project in combination with the effects of past projects, other current projects, and probable future projects, including development allowed under applicable planning and zoning. The following factors shall be analyzed:

a. Evidence of use of the site by members of the general public for a continuous five-year period (such use may be seasonal).

b. Evidence of the type and character of use made by the public (vertical, lateral, blufftop, etc. and for passive and/or active recreational use, etc.).

c. Identification of any agency (or person) who has maintained and/or improved the area subject to historic public use and the nature of the maintenance performed and improvements made.

d. Identification of the record owner of the area historically used by the public and any attempts by the owner to prohibit public use of the area, including the success or failure of those attempts.

e. Description of the potential for adverse impact on public use of the area from the proposed development (including but not limited to, creation of physical or psychological impediments to public use).

(D) Required Findings For Public Access Exceptions. Any determination that one of the exceptions of Section 9.27.030(a)(3)(B) applies to a development shall be supported by written findings of fact, analysis and conclusions which address all of the following:

1. The type of public access potentially applicable to the site involved (vertical, lateral, bluff top, etc.) and its location in relation to the fragile coastal resource to be protected or the public safety concern which is the basis for the exception, as applicable.

2. Unavailability of any mitigating measures to manage the type, character, intensity, hours, season or location of such use so that fragile coastal resources or public safety, as applicable, are protected.

3. Ability of the public, through another reasonable means, to reach the same area of public tidelands as would be made accessible by an accessway on the subject land.

(E) Findings For Management Plan Conditions. Written findings in support of a condition requiring a management plan for regulating the time and manner or character of public access use must address the following factors, as applicable:

1. Identification and protection of specific habitat values including the reasons supporting the conclusion that such values must be protected by limiting the hours, seasons, or character of public use.

2. Topographic constraints of the development site.

3. Recreational needs of the public.

4. Rights of privacy of the landowner which could not be mitigated by setting the project back from the accessway or otherwise conditioning the development.

5. The requirements of the possible accepting agency, if an offer of dedication is the mechanism for securing public access.

6. Feasibility of adequate setbacks, fencing, landscaping, and other methods as part of a management plan to regulate public use.

(6) Section 9.69.080(b) contains standards for the review of recorded documents for access.

(7) Public Access in Private Development. The hotel originally known as the Ritz Carlton Laguna Niguel at the time it opened for business, located on the promontory situated above Salt Creek County Beach Park, shall be operated as a hotel facility open to the general public and shall not be converted to a private resort facility. Existing public access through the hotel site, and signage visible to the public acknowledging the public access, shall be preserved and maintained.

(b) Wetland Resources. To protect and maintain the City's coastal wetland resources, a minimum 100-foot buffer area around all identified wetlands shall be provided as part of all allowable development within or adjacent to wetlands, unless both the California Department of Fish and Game and the U.S. Fish and Wildlife Service provide a written determination that a lesser buffer will provide adequate protection.

(1) To minimize the disturbance to a wetland from adjacent development, the following minimum requirements shall be incorporated into the design of a buffer area:

(A) Fences and/or natural barriers shall be provided to control the entry of humans and non-wetlands animal species into the wetland. The buffer shall also provide for visual screening in those cases where resident or migratory wetland species are particularly sensitive to human impacts. Development adjacent to wetlands shall be sited and designed to avoid excessive light or noise, where feasible. The use of walls, berms and other barriers shall be considered where excessive artificial light or noise is unavoidable.

(B) Buffers shall be designed, where necessary, to help minimize the effects of erosion, sedimentation, and pollution arising from urban and industrial activities. Any pollution control devices within the buffer area shall be maintained.

(C) Buffers shall provide habitat for species residing in the transitional zone between wetlands and uplands. The design of buffers should consider the movement of food and energy between habitats as well as the life cycles of organisms that feed or reproduce in the wetland but generally reside outside the wetland. Any revegetation work in the buffer area shall use native species from local sources.

(2) Uses Within Buffer Areas. Necessary pollution control devices and passive recreational uses shall be allowed within buffer areas but only if it can be shown that these uses will not have significant adverse impacts on the wetland ecosystem or the buffer's function as described in the above criteria. These uses shall be limited to bird watching, walking, jogging, and bike riding, and may include the construction of paths and interpretive signs and display. Any paths constructed shall minimize adverse impacts to plants and animals in the buffer area.

(c) Development Adjacent to Coastal Bluffs. Development adjacent to coastal bluffs shall minimize hazards to owners, occupants, property, and the general public; be environmentally sensitive to the natural coastal bluffs; and protect the bluffs as a scenic visual resource. The minimum setback from the bluff edge of a coastal bluff shall be established by the underlying zoning district. However, in no case shall the minimum setback be less than 25 feet or one which provides for 50 years of erosion, whichever is most restrictive.

In addition, should the geotechnical report indicate bluff stabilization is required to ensure proposed development is safe from a threat of erosion and bluff failure for fifty years, additional setbacks will be required. Any approved slope stabilization measures shall be the least environmentally damaging feasible alternative and shall be designed to minimize alteration of the bluffs and be subordinate to the natural character of the bluffs.

Development setbacks from coastal bluff edges may not be the same due to varying geologic conditions and environmental conditions. The following provisions detail the items required for filing, the means by which coastal bluff edges are measured, criteria for review, development standards, and the potential development that may be permitted within the coastal bluff setback area.

(1) Coastal Bluff Edge Measurement.

(A) The applicant shall provide an aerial photograph and contour map of the site clearly delineating the current coastal bluff edge, existing topography and the outline of the development proposed.

(B) The applicant shall provide a geotechnical report, prepared within one year of the date of the application submittal, which specifically addresses the coastal bluff edge and delineates the bluff edge on a graphic exhibit on both the grading plan and site plan. The report shall specifically address the methodology used to support the conclusions of the report.

(C) The Director of Community Development and Director of Public Works or their designee shall conduct an on-site survey of the property and compare the geotechnical report's conclusions with that of actual on-site terrain and bluff top patterns.

(2) Criteria For Review. At a minimum, the following will be required for each application for development adjacent to coastal bluff edges:

(A) Development plans shall be prepared and wet stamped by a State Certified Engineering Geologist knowledgeable in coastal engineering and engineering geology.

(B) A geotechnical report shall address the factors which directly or indirectly cause, promote, or encourage bluff erosion or failure either on site or on adjacent properties, and the measures to control these factors. The report shall include, but shall not be limited to, the following information:

1. Bluff geometry, site topography, and any other condition which may affect the site.

2. Historic, current, and foreseeable bluff erosion. A minimum of 50 years of historic erosion and 50 years of future erosion should be analyzed.

3. Geologic conditions including, but not limited to, soils, sediment, bedrock, drainage patterns, and structural features such as fault lines and joints. Soils borings to bedrock and the limits and depth of alluvial removal shall be addressed to the satisfaction of the Director of Public Works.

4. Evidence of past and potential landslides and the implication of such conditions on the structural integrity of the proposed development as well as the proposed development's potential effect on landslide activity.

5. Impact of construction activity on the stability of the site and adjacent area. This shall include, but not be limited to, remedial grading, the impact of grading machinery, or other vibration inducing factors on the bluff stability.

6. Ground and surface water conditions or variations caused by the development, such as the alteration in surface/subsurface drainage, irrigation systems, and proposed drains and subdrains.

7. Mitigation measures proposed to be used to ensure minimized erosion problems during and after construction.

8. Any other facts that might affect slope stability, including but not limited to the effects of marine erosion on coastal bluffs, and related mitigation measures for potential impacts.

9. Any proposed development, either main structures or minor development, shall be addressed in the report. Said structures and development shall be evaluated with respect to impact on the stability of the bluff to ensure that structures and development are reasonably safe from failure and erosion given a minimum 50-year physical life.

10. Any other information as deemed necessary by the Director of Community Development or Director of Public Works.

11. A bibliography of all information sources, including, but not limited to, dates of site visits.

(3) Development Standards.

(A) Drainage. All surface and subsurface run-off shall be directed to a public street or an approved drainage facility to the satisfaction of the Director of Public Works. Transportation of said run-off may require area drains, roof drains, reductions in grading, appropriate pumping mechanisms, and other similar measures. Where feasible, said run-off shall be directed to sewer systems rather than storm drains which lead directly to the ocean.

(B) Landscaping. All landscaping shall be native or drought tolerant which minimizes irrigation requirements, and reduce potential slide hazards due to over watering. Irrigation and the use of turf grass, ice plant and similar shallow-rooted plants within the bluff setback shall be specifically prohibited on blufftop developments. Landscaping shall be maintained and installed so as to ensure that, during growing stages as well as at maturity, the landscaping will not obstruct public views.

(4) Requirements for Setback Deviation. A State Licensed Civil Engineering Geologist shall prepare a site specific geotechnical and soils report to address and explain any proposed deviation from the minimum setbacks from the coastal bluff edge in the Zoning Map, and the Draft Dana Point General Plan Coastal Erosion Technical Report dated July 11, 1990. The report shall include:

(A) An explanation and calculation of the deviations, if any, in the setback from the coastal bluff edge.

(B) If caissons are not recommended, the report shall explain why caissons are not needed. If caissons are recommended in the report, the following additional information shall be provided:

1. Indicate the angle of repose.

2. Depth of caisson required for the structure and limits of caissons.

(C) Requirements for Setback Deviation. Should an analysis of the geotechnical report conclude that a greater or lesser setback may be necessary than that required by this Code, the Planning Commission can make a finding that it is in the interest of the public safety to approve an additional or lesser setback as recommended. However, in no case shall a setback of less than 25 feet or less than 50 years of bluff erosion, whichever is most restrictive, be permitted.

(5) Permitted Development within the Coastal Bluff Edge Setback. Precautions are required to ensure that the integrity of the bluff is not threatened. Development within the coastal blufftop setback area shall minimize landform alteration, be subordinate to the natural character of the bluff, and is limited to structures that may include retaining and non-retaining walls, fences, and drought-tolerant landscaping which conform to the setback requirements of this Chapter. Swimming pools and sunken spas are prohibited within the setback area. Additional setbacks shall be required if recommended in a geotechnical report submitted for the minor development.

Minor development and improvements are defined as:

(A) Those generally not requiring a building or grading permit and not attached to the main structure; and

(B) Those developments which protect natural resources or ensure public safety such as fences and low walls.

A Coastal Development Permit pursuant to Chapter 9.69 shall be required prior to any minor development. Minor development may only be approved if the approved geotechnical reports support such development and conclude that the development will not have an impact on bluff stability. All minor development shall be environmentally sensitive to the natural bluff line and public view.

Grading on the coastal bluff shall be kept to a minimum. Raising of the natural grade shall be limited to that level needed to provide a maximum of 1% of fall to the existing top of curb in the street in order to facilitate piping of all bluff drainage to the street by gravity.

A study which details the potential impact of any proposed grading on the coastal bluff may be required at the discretion of the Director of Community Development or the Director of Public Works as the circumstances of the individual lot warrant. The study shall be prepared to address the impacts identified by the City to the satisfaction of the Director of Community Development and/or the Director of Public Works.

(6) Development at the Base of Coastal Bluffs. Development proposed at the base of coastal bluffs shall be required to submit appropriate geotechnical reports which provide a detailed assessment of the ultimate stability of the bluffs above the subject site. The report(s) shall document the ultimate profile (section) of the bluff face, delineate the buildable portion of the site and shall include recommendations for adequate protective structures for the project as well as recommendations for alternatives which do not require landform alteration of the bluff face nor bluff stabilization. The report(s) shall address all topics relevant to the geologic condition of the subject site and adjacent bluffs and shall be prepared to the satisfaction of the Director of Public Works. Proposals for shoreline protective devices at the base of coastal bluffs shall be consistent with the requirements of Section 9.27.030(f) below.

(7) Development on the face of Coastal Bluffs. New private staircases, the replacement of 50% or more of existing private staircases, or additions to/expansion of existing private staircases, which descend down bluff faces shall be prohibited. Public staircases down bluff faces shall only be permitted if geologic instability would not result, if landform alteration would be minimized, and the staircase would be visually subordinate to the natural character of the bluff face.

(d) Environmentally Sensitive Habitat Areas.

(1) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas.

(2) Development adjacent to an environmentally sensitive habitat area (ESHA) shall be required to submit a biological assessment which shall include, at a minimum, a survey of the types and quantities of sensitive species present in the ESHA, the impacts of the development on the ESHA, alternatives to the development, and mitigation measures for unavoidable impacts on the ESHA resulting from the development. Evaluations of the development's impact to the ESHA shall be sought from appropriate state and federal resources agencies.

(e) Grading. Grading activity shall be conducted in a manner that minimizes landform alteration and erosion and ensures geologic stability and structural integrity.

(1) Landform Alteration.

(A) Man-made slopes shall be designed so that they can be conveniently maintained so as to minimize erosion, slope failure and unsightly conditions.

(B) Man-made slopes shall be designed to resemble natural terrain where feasible, with a minimum of long, flat, inclined plane surfaces and acute angles.

(C) Man-made slopes shall be no steeper than two feet horizontal to one foot vertical.

(2) Erosion Control. Appropriate mitigation measures shall be employed, including but not limited to prompt revegetation of graded areas with similar types of vegetation which previously existed on-site prior to the commencement of grading activities, and avoiding grading during the rainy season from October 15 through April 15.

Each building pad at or above street level shall drain directly to the street. Where any lot is designed in such a manner that it will not drain with a minimum 1% grade directly to a street or common drainage facility, it shall be designed in a manner that will conform to the following criteria:

(A) Lots shall be designed in such a manner that man-made slopes are not subject to sheet flow or concentrated runoff from either the same or an adjacent lot. All slopes shall be protected from surface runoff by berms, interceptor ditches, or similar measures.

(B) All water flowing off man-made slopes shall be constrained within an approved drainage device.

(f) Shoreline Protective Devices. Seawalls, revetments, and other such shoreline protective devices or construction that alters natural shoreline processes shall be permitted only if non-structural alternatives are found to be infeasible, and when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. Existing marine structures or shoreline protective devices causing water stagnation contributing to pollution problems and fish kills should be phased out or upgraded where feasible. Any shoreline protective device which may be permitted shall be placed so that no part of a new shoreline protective device is built further onto the beach than a line drawn between the nearest adjacent corners of the nearest adjacent shoreline protective devices.

Seawalls in the northern portion of the Capistrano Bay District private community along Beach Road (north of Pines Park located in the inland bluffs above the community), when permitted in accordance with the other requirements of this Chapter, shall have a scour blanket consisting of rip-rap stone placed at the seaward toe of the seawall to minimize beach erosion.

(g) Water Quality. All drainage facilities shall be designed to carry surface runoff to the nearest practical street or storm drain approved by the City and/or other appropriate governmental agency as the proper place to deposit such waters. Where feasible, structural and non-structural Best Management Practices including, but are not limited to, first flush diversion, detention/retention basins, infiltration trenches/basins, porous pavement, oil/grease separators, street sweeping, and grass swales, and other measures as may be required by State water quality agencies, shall be implemented. All drainage improvements intended or required to convey storm runoff shall be designed and installed or constructed in accordance with the applicable National Pollutant Discharge Elimination System requirements.

(h) Fire Hazards. Fuel modification within environmentally sensitive habitat areas shall be minimized to the extent feasible. Fuel modification plans shall, where feasible, employ selective thinning by hand rather than mass clear-cutting within environmentally sensitive habitat areas.

(Added by Ord. 93-16, 11/23/93; amended by Ord. 94-09, 5/24/94; Ord. 97-05, 9/9/97; Ord. 99-05, 4/27/99)