City of Huntington Beach, CA: Public Access Implementation.

§ 221.10 Requirements for New Development Adjacent to Resource Protection Area.

As a condition of new development adjacent to a resource protection area, which includes any wetland, environmentally sensitive habitat area (ESHA), associated buffers, land zoned coastal conservation, as the same are defined in the City's Local Coastal Program, an applicant shall comply with the requirements listed below. These requirements shall be applicable to all lots within new subdivisions as well as development proposed on existing lots within and/or adjacent to resource protection areas.

Landscape Plan shall be prepared that prohibits the planting, naturalization or persistence of invasive plants, and encourages low-water-use plants, and plants primarily native to coastal Orange County of local stock.

Domestic Animal Control Plan shall be prepared that details methods to be used to prevent pets from entering any resource protection areas, including, but not limited to appropriate fencing and barrier plantings.

Pest Management Plan shall be prepared that, at a minimum, prohibits the use of rodenticides, and restricts the use of pesticides, and herbicides in outdoor areas, except necessary vector control conducted by the City or county.

Street lighting, exterior residential lighting and recreational lighting adjacent to resource protection areas shall not significantly disrupt habitat values within the resource protection areas.

Covenants, conditions and restriction (CC&Rs) in a form approved by the Office of the City Attorney shall be recorded specifying that the requirements and restrictions of this section apply. The CC&Rs shall be binding on each of the lots, shall run with the land affected by the subdivision and shall be included or incorporated by reference in every deed transferring one or more of the lots in the subdivision.

The project applicant shall provide any buyer of a housing unit within the CZ Overlay District an information packet that explains the sensitivity of the natural habitats within or adjacent to the project site and the need to minimize impacts on the designated resource protection area(s), and the prohibition on landscaping that includes exotic invasive plant species. The information packet shall include a copy of the domestic animal control plan and pest management plan and be required for all sales of housing units pursuant to the CC&Rs.

Protective fencing or barriers shall be installed and maintained between the resource protection areas and areas developed for homes or recreational use for the purpose of minimizing human and domestic animal presence in resource protection areas, including restored and preserved wetland and ESHA buffer areas; however, public access to designated passive recreational use areas shall be provided. Visual impacts created from any walls or barriers adjacent to open space conservation and passive recreational use areas shall be minimized through measures such as open fencing/wall design, landscape screening, use of undulating or off-set wall features, etc.

Walls, fences, gates and boundary treatments shall use wood, wrought iron, frosted or partially-frosted glass or other visually permeable barriers that are designed to prevent creation of a bird strike hazard. Clear glass or plexiglass shall not be installed unless appliqués (e.g. stickers/decals) designed to reduce bird-strikes by reducing reflectivity and transparency are also used.

Uses allowed adjacent to designated wetlands and environmentally sensitive habitat areas shall ensure the continuance of the habitat value and function of preserved and restored wetlands and ESHA.

(3834-7/09, 3903-12/10 (certified by California Coastal Commission 12/10))

§ 221.36 Public Access Implementation.

Purpose. The purpose of this section includes the following:

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 codified at Section 30000 through 30900 of the California Public Resources Code. Section 30001.5(c) states that public access both to and along the shoreline shall be maximized consistent with sound resource conservation principles and constitutionally protected rights of private property owners;

To implement the public access and recreation policies of Chapter 3 of the Coastal Act (Sections 30210 through 30255); 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 to ensure that maximum public access to the coast and public recreation areas is provided.

In achieving these purposes, this chapter 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.

Definitions. The following definitions shall govern the implementation of the public access requirements of the Coastal Act and this public access ordinance.

Development.

The placement or erection of any solid material or structure on land, in or under water; discharge or disposal of any materials; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to Section 66410 of the Government Code, and any other division of land, including lot splits, except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use; and change in the intensity of use of water, or access thereto; construction, reconstruction, demolition, or alteration of the size of any structure, including any facility of any private, public, or municipal utility; and the removal or harvesting of major vegetation.

As used in this section "structure" includes but is not limited to, any building, road, pipe, flume, conduit, siphon, aqueduct, telephone line, and electrical power transmission and distribution line.

New Development.

For purposes of implementing the public access requirements of Public Resources Code Section 30212 and of this section, "new development" includes "development" as defined in paragraph 1 of this subsection except the following:

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.

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%, and that the reconstructed residence shall be sited in the same location on the affected property as the former structure.

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%, which do not block or impede access, and which do not result in a seaward encroachment by the structure.

Repair and Maintenance.

Repair and 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.

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.

Sea.

The Pacific Ocean and all harbors, bays, channels, estuaries, salt marshes, sloughs, and other areas subject to tidal action through any connection with the Pacific Ocean, excluding nonestuarine rivers, streams, tributaries, creeks and flood control and drainage channels.

Types of Public Access and Recreation.

Lateral public access provides public access and use along or parallel to the sea.

Blufftop access provides public access and coastal viewing along a coastal blufftop area.

Vertical access provides a public access connection between the first public road, trail, or public use area nearest the sea and the publicly owned tidelands or established access.

Trail access provides public access along a coastal recreational path, including to and along lakes, rivers, streams, freshwater marshes, flood control channels/features, significant habitat and open space areas or similar resource areas, and which also may link inland recreational facilities to the shoreline.

Recreational access provides public access to coastal recreational resources through means other than those listed above, including but not limited to parking facilities, viewing platforms and blufftop parks.

Character of Accessway Use.

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 subsections O and R of this section establish that the limitation is necessary to protect natural habitat values, topographic features (such as eroding bluffs), or privacy of the landowner.

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.

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.

Access Required. As a condition of approval and prior to issuance of a permit or other authorization for any new development identified in paragraphs 1 through 4 of this subsection, except as provided in subsection D of this section, an offer to dedicate an easement or other legal mechanism pursuant to paragraph (M)(2) of this section for one or more of the types of access identified in subsections E through H of this section shall be required and shall be supported by findings required by subsections O through Q of this section; provided that no such condition of approval for coastal access shall be imposed if the analysis required by paragraphs (O)(1) and (2) 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 or is not reasonably related to those burdens in both nature and extent.

New development on any parcel or location where public access is identified in the land use plan as desirable.

New development between the nearest public roadway and the sea.

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.

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

Exceptions. Subsection C of this section shall apply except in the following instances:

Projects excepted from the definition of "new development" in paragraphs (B)(2)(a) through (e).

Where findings required by subsections O and P establish any of the following:

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

Adequate access exists nearby; or

Agriculture would be adversely affected.

Exceptions identified in paragraph (D)(2) shall be supported by written findings required by subsection O of this section.

Lateral Public Access—Minimum Requirements.

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 subsection C of this section 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.

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, 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 subsection P of this section. Lateral access shall be legally described as required in subsection J of this section.

Vertical Public Access—Minimum Requirements.

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 subsection C of this section shall provide the public with the permanent right of access: (a) located in specific locations identified in the certified Local Coastal Program for future vertical access, or (b) located in a site for which the local government 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.

A condition to require vertical access as a condition of approval of a Coastal Development Permit (or other authorization to proceed with development) 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 subsection P of this section.

Each vertical accessway shall extend from the road to the shoreline (or bluff edge) and shall be legally described as required in subsection J of this section. 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 to the structure.

Blufftop Access—Minimum Requirements.

A condition to require public access along a blufftop as a condition of approval of a Coastal Development Permit (or other authorization to proceed with development) pursuant to subsection C of this section shall provide the public with the permanent right of scenic and visual access from the blufftop to the public tidelands.

The blufftop 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 subsection P of this section.

Each blufftop 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. 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 improvements.

The accessway shall be legally described as required in subsection J of this section, 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 ______ feet wide located along the blufftop as measured inland from the daily bluff edge. As the daily blufftop 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 _______ feet from _______ (a fixed inland point, such as the centerline of a public road or other easement monument)."

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) pursuant to subsection C of this section shall provide the public with the permanent right of access and active recreational use (1) along a designated alignment of a coastal recreational path or trail in specific locations identified in the Local Coastal Program (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. In determining if another character of use is appropriate, findings shall be made on the specific factors enumerated in subsection P of this section. The trail access shall be legally described as required by subsection J of this section.

Protection of Historic Public Use.

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 subsections E through H of this section.

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."

Legal Description of an Accessway—Recordation.

An access dedication required pursuant to subsection C of this section shall be described in the condition of approval of the permit or other authorization for development 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:

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 stringline or dripline;

For blufftop access or trail access: extending inland from the bluff edge or along the alignment of a recreational trail;

For vertical access: extending from the road to the shoreline (or bluff edge). A privacy buffer provided pursuant to subsection L of this section shall be described, as applicable.

Prior to the issuance of the Coastal Development Permit or other authorization for development, the landowner shall execute and record a document in a form and content acceptable to the Coastal Commission [or local agency authorized pursuant to 14 California Administrative Code Section 13574(b)], consistent with provisions of the Coastal Development Permit ordinance, irrevocably offering to dedicate to a public agency or private association approved by the Coastal Commission [or local agency authorized by the Commission pursuant to 14 California Administrative Code Section 13574(b)] an easement for a specific type of access and a specific character of use as applicable to the particular condition.

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.

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.

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 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.

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 10 feet. The buffer can be reduced where separation is achieved through landscaping, fences or grade separation.

Implementation.

A dedicated accessway shall not be required to be opened to public use until a public agency or private association approved in accordance with subsection J agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction.

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 ensure 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 section shall apply.

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.

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 subsection J 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.

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 subsection P and shall reflect the specific level of detail specified, as applicable. Findings supporting all such decisions shall include:

A statement of the individual and cumulative burdens imposed on public access and recreation opportunities based on applicable factors identified pursuant to subsection P of this section. The type of affected public access and recreation opportunities shall be clearly described.

An analysis based on applicable factors identified in subsection P of this section of the necessity for requiring public access conditions to find the project consistent with the public access provisions of the Coastal Act.

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

An explanation of how imposition of an access dedication requirement alleviates the access burdens identified.

Required Project—Specific Findings. In determining any requirement for public access, including the type of access and character of use, the City shall evaluate and document in written findings the factors identified in paragraphs 1 through 5 of this subsection, to the extent applicable. The findings shall explain the basis for the conclusions and decisions of the City 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 adverse effects which have been identified will be alleviated or mitigated by the dedication. As used in this subsection, "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.

Project Effects on Demand for Access and Recreation. Identification of existing and open public access and coastal recreation areas and facilities in the regional and local vicinity of the development. Analysis of the project's effects upon existing public access and recreation opportunities. Analysis of the project's cumulative effects upon the use and capacity of the identified access and recreation opportunities, including public tidelands and beach resources, and upon the capacity of major coastal roads from subdivision, intensification or cumulative buildout. Projection of the anticipated demand and need for increased coastal access and recreation opportunities for the public. Analysis of the contribution of the project's cumulative effects to any such projected increase. 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. 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.

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

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

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.

Other Adverse Impacts on Access and Recreation. Description of the development's physical proximity and relationship to the shoreline and any public recreation area. 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. 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.

Required Findings for Public Access Exceptions. Any determination that one of the exceptions of subsection D of this section applies to a development shall be supported by written findings of fact, analysis and conclusions which address all of the following:

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

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

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.

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:

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.

Topographic constraints of the development site.

Recreational needs of the public.

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

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

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

(3334-6/97, 3834-7/09)