VANNUCCI MOMSEN MORROW
Attorneys at Law
An Association of Sole Practitioners
Philip M. Vannucci
Brian S. Momsen
The Hofman Building
308 S School St.
Ukiah, CA 95482
Phone: 707.462.0900
Email: [email protected]
Email: [email protected]
Colin W. Morrow
The Penny Farthing Building
45060 Ukiah St., Ste. A
P.O. Box 1214
Mendocino, CA 95460
Phone: 707.380.1070
Email: [email protected]
April 10, 2025
VIA EMAIL ONLY
California Coastal Commission
North Coast Office
1385 8th Street #130
Arcata, CA 95521
([email protected])
Re: Appeal of City of Fort Bragg City Council’s Approval of CDP 8-24 Concerning Development at 1151 South Main Street in Fort Bragg, California
Honorable Commissioners of the Coastal Commission:
I represent Paul Clark, who appeals the Fort Bragg City Council’s approval of a wall of residential apartments upon the water. Such a barrier of bedrooms is fundamentally incompatible with the City of Fort Bragg’s local coastal plan and the public access provisions of the Coastal Act.
The project under appeal is an 87 unit residential development situated west of Highway 1 and comprising 84,387 square feet. The City Council found the project to be located “between the first public road and the sea.” (Permit Finding, (3)(g).) The real property was zoned in conformity with the City of Fort Bragg’s General Plan to only have “[r]esidential uses . . . above the ground floor or on the ground floor at the rear of buildings, (General Plan, Part 2(G)1), but this requirement was ignored. Space that should have been reserved for visitor serving and recreational commercial facilities is being closed off for private residential use.
Although the City of Fort Bragg’s review of the proposed project was rife with error, the current appeal focuses primarily upon (i) the project improperly sacrificing real 1 The City’s General Plan is available at
https://www.city.fortbragg.com/departments/community-development/general-planzoning-information/local-coastal-program, and those parts made part of the certified local are identified in Part 1(C)(2)(a).)
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC -1
PC-2
PC-3
California Coastal Commission
April 10, 2025
property intended for commercial visitor serving facilities to private non-visitor serving residential development in a manner contrary to Fort Bragg’s local coastal plan and general plan; (ii) similarly being inconsistent with the policy objectives of the Coastal Act by prioritizing private residential development over visitor serving or recreational opportunities, and (iii) failing to evaluate or consider major traffic impacts that are likely to be inconsistent with both the local coastal plan and policy objectives of the Coastal Act.
The Council’s approval of the project is appealable under Public Resources Code section 30603, subdivisions (a)(1 & 4).
In an appeal to the state Coastal Commission from a grant of a coastal development permit, if the Commission determines that the appeal presents a substantial issue, the permit application is reviewed de novo; in effect, the Commission hears the application as if no local governmental unit was previously involved, deciding for itself whether the proposed project satisfies legal standards and requirements. (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912.) “The Commission has the ultimate authority to ensure that coastal development conforms to the policies embodied in the state’s Coastal Act. In fact, a fundamental purpose of the Coastal Act is to ensure that state policies prevail over the concerns of local government.” (Charles A. Pratt Construction Co., Inc. v. California Coastal Com. (2008) 162 Cal.App.4th 1068, 1075.)
I. Background
The proposed project is an 87 unit residential village located at 1151 South Main Street. The subject parcel is a 2.6 acre parcel zoned as “Highway Visitor Commercial.” The subject parcel is located on the west side of Highway 1, lying between Highway 1 and the Pacific Ocean. It is also located in a central arterial in-route to Fort Bragg, directly where visitors from either San Francisco (traveling north via Highways 101 or 1) or the Central/Sacramento Valley (traveling west via Highway 20) would enter Fort Bragg.
The subject site’s location and relevant zoning is provided on the zoning map appearing on the following page. As this map emphasizes, (i) the subject location is a central arterial point of ingress and egress for the City, (ii) the City’s zoning has consciously elected to designate this site for visitor serving commercial facilities, and (iii) private residential development is generally favored both inland and toward the town’s interior.
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-4
PC-5
PC-6
California Coastal Commission
April 10, 2025
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
California Coastal Commission
April 10, 2025
The subject area currently provides ocean views—and visual notice of coastal access and opportunities at the nearby Pomo Bluffs and Todd’s Point public parks—as depicted below:
By contrast, the artist’s rendering of the development highlights that the development would be replaced with a total barrier, operating both visually and psychologically, to dampen public access:
II. The City Council Was Advised As to a Legally Defective Standard That Caused It to Fail to Engage in a Proper Local Coastal Plan Consistency Analysis; Moreover, the Council Failed to Make Adequate Findings of Fact Linked to Evidence in the Administrative Record
At the subject hearing, the City’s planner repeatedly misadvised the Council as to relevant standards of review. In discussing Government Code section 65589.5— California’s Housing Accountability Act—the planner misadvised the Council that it Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-7
PC-8
California Coastal Commission
April 10, 2025
could only deny the project either if there was a specific adverse impact upon health and safety or that there was no feasible method to satisfactorily mitigate or avoid the adverse impact. (Hearing Video, available at
https://www.city.fortbragg.com/government/city-council/council-meeting-live-stream, at 1:15.) This was reiterated—incorrectly—by this planner.
This was a misstatement of the law. Moreover, it caused the Council to completely—and myopically—overlook local coastal plan consistency. What Government Code section 65589.5 says is that:
For a housing development project for very low, low-, or moderate-income households, or an emergency shelter, a local agency shall not disapprove the housing development project or emergency shelter, or condition approval in a manner that renders the housing development project or emergency shelter infeasible, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following: [With the statute then going on to list a number of criteria.].
(Gov. Code, § 65589.5, subd. (d).)
What the planner failed to understand or articulate to the Council, was that the Project failed to meet the criteria for a “a housing development project for very low, low-, or moderate-income households” as that phrase appears above. Only 8 of the 87 housing units will be low-income. (Notice of Final Action, Special Condition 6.) Under the relevant definitions, at least ten percent of the units must be dedicated to “very low income households.” “‘Housing for very low, low-, or moderate-income households’ means housing for lower income households, mixed-income households, or moderate-income households.” (Gov. Code, § 65589.5, subd. (h)(3)(A).) A project that is “[h]ousing for mixed-income households” relying upon “very low income households” must have “at least 10 percent of the total units, . . . dedicated to very low income households.” (Id. at subd. (h)(3)(C)(i) (emphasis added).) Ergo, it was structural error for the Council to ignore the substantial considerations described in this appeal in approving the project. Even if the precise contours of this statutory reality were not expressly raised below, the functional thrust of the issue was raised because the City Council’s constituents repeatedly implored the Council to undertake the specific kinds of review that the planner advised the Council that Government Code section 65589.5 forbade.
Even if this had not been structural error, the Housing Accountability Act:
[S]hall not be construed to prohibit a local agency from requiring a housing development project to comply with objective, quantifiable, written Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-9
PC-9
PC-9
PC-9
PC-9
California Coastal Commission
April 10, 2025
development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the local agency shall apply those standards, conditions, and policies to facilitate and accommodate development at the density permitted on the site and proposed by the development.
(Gov. Code § 65589.5, subd. (f).)
Additionally clouding the issues otherwise discussed herein, it was error for the City to adopt its findings in only the most conclusory manner. Because the Council was functioning in a quasi-judicial (rather than legislative) manner, its decisions must be supported by factual findings with a legal nexus to an ultimate decision. (Code Civ.
Proc. § 1094.5.) “[T]he agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) The findings must be sufficient “both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [administrative] action.” (Id. at p. 514.) Here, however, this did not happen. This is reflected in the wholly conclusory nature of the Council’s findings of fact.2
III. The Project Improperly Sacrifices Land Intended for Commercial Visitor Serving Facilities to Private Non-visitor Serving Residential Development in a Manner Contrary to Fort Bragg’s Local Coastal Plan
“The mission of [Fort Bragg’s] Coastal General Plan is to preserve and enhance the small town character and natural beauty that make the City a place where people want to live and visit, and to improve the economic diversity of the City to ensure that it has a strong and resilient economy which supports its residents.” (General Plan, Part 1(D).) This project does the opposite of that. It creates a homogenous monolith of apartments that undermine the small-town character of Fort Bragg, perpetuates the City’s drift toward a bedroom community, and physically obstructs highway visitors’ views of both the coastline and coastal access.
2 The project was also improperly exempted from any CEQA review under CEQA Guideline section 15352 and 15192. The project is not consistent with the applicable general plan and zoning as required by CEQA Guideline 15352. Only some, and not all the units will be affordable, as required by CEQA Guideline 15192. For the reasons stated herein, there is a fair argument that such a large project will have relevant impacts upon the physical environment. Moreover, the fact that the project relied upon density bonuses that had been previously approved without notice to local landowners presents a due process issue under Scott v. City of Indian Wells (1972) 6 Cal.3d 541 and Horn v. County of Ventura (1979) 24 Cal.3d 605.
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-10
PC-11
PC-11
California Coastal Commission
April 10, 2025
The mission and vision of Fort Bragg is of “[a] city which seeks to preserve its natural beauty and provide access to the scenic and recreational resources of its natural setting.” (Ibid.) Nevertheless, the project obstructs natural beauty as mentioned above.
The mission and vision of Fort Bragg is as “[a] city that embraces its role as the primary commercial and service center on the Mendocino coast.” (Ibid.) Nevertheless, this project sacrifices real property that was expressly allocated for visitor serving commercial facilities to insular bedroom units. The mission and vision of Fort Bragg is “[a] city which promotes itself as a tourist destination and which provides the necessary infrastructure and services to support a growing population of transient visitors.” (Ibid.) Nevertheless, this project rebuffs transient visitors in favor of cloistered bedrooms. “Highway Visitor Commercial”—as the subject property is zoned—is specifically designated by Fort Bragg’s Coastal General Plan as follows:
This land use designation applies to land uses serving residents and visitors on sites which are located along Highway One and arterials at the entry points to the community. Typical uses allowed in this designation include motels and other lodging enterprises, restaurants, and retail outlets. Residential uses are permitted above the ground floor or on the ground floor at the rear of buildings3 at a maximum density of up to 24 units per acre with a conditional use permit.
(General Plan, Part 2(G); see also Fort Bragg Municipal Code 17.22.030, subd. (C)(5)(a) [“Secondary uses oriented to local clientele may be permitted where the primary use of a site is oriented to or serves visitor, regional, or transient traffic;” (emphasis added)].)
Paired with this, it is a goal of the local coastal plan to “[m]maximize public recreational opportunities in the Coastal Zone consistent with sound resource conservation principles and the constitutionally protected rights of property owners.” (General Plan, Goal LU-5.0) Local Coastal Plan policies include that the City of Fort Bragg should “[c]ontinue to provide for and encourage additional visitor-serving commercial facilities,” (General Plan, Policy LU-5.1,) and “[e]nsure that there are adequate sites for visitor-serving land uses by: a) Maintaining existing areas designated for Highway-Visitor Commercial uses; b) Maintaining the Highway Visitor Commercial land use designation as one allowing primarily recreational and visitor-serving uses; and 33 The choice to use—and approval of—ground floor spaces as residential facilities is a fundamental defect in the project. Moreover, the use of the ground floor for commercial use would not make the project unfeasible because the City’s planner explained at hearing that the applicant had initially been “perfectly happy” with a 56 residential unit project. (Hearing Video, available at https://www.city.fortbragg.com/government/citycouncil/council-meeting-live-stream.) The applicant could still have 56 units with the ground floors committed to visitor serving commercial uses.
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-13
PC-12
PC-13
PC-13
California Coastal Commission
April 10, 2025
c) Reserving adequate infrastructure capacity to accommodate existing, authorized, and probable visitor serving uses,” (General Plan, Policy LU-5.2) It is additionally an express policy of the local coastal plan to:
Ensure Adequate Service Capacity for Priority Uses.
a. New development that increases demand for new services by more than one equivalent dwelling unit (EDU) shall only be permitted in the Coastal Zone if,
• Adequate services do or will exist to serve the proposed development upon completion of the proposed development, and
• Adequate services capacity would be retained to accommodate existing, authorized, and probable priority uses upon completion. Such priority uses include, but are not limited to, coastal dependent industrial (including commercial fishing facilities), visitor serving, and recreational uses in commercial, industrial, parks and recreation, and public facilities districts.
Probable priority uses are those that do not require an LCP amendment or zoning variance in the Coastal Zone.
b. Prior to approval of a coastal development permit, the Planning Commission or City Council shall make the finding that these criteria have been met. Such findings shall be based on evidence that adequate service capacity remains to accommodate the existing, authorized, and probable priority uses identified above.
(General Plan, Policy PF-1.3.)
Said elsewhere, it is a policy of the local coastal plan to “[e]ncourage the development of residential uses in conjunction with commercial enterprises in commercial zones, where the viability of the commercial activities and visitor-serving uses would not be adversely affected.” (General Plan, Policy H-2.2 (emphasis added).) Here, however, the City failed to consider the effect of a residential monolith upon the ability to provide for new priority visitor serving facilities. The City is instead wholly sacrificing the potential for visitor serving or recreational facilities in favor of a wall of bedrooms between Highway 1 and coastal access. The Council appears to have failed to grapple with its local coastal plan primarily because it was told that it could not.
Had it done so, the Council would have seen the objectively clear patent inconsistency.
IV. Similarly, the Preference for Private Non-visitor Serving Residential Development Is Contrary to the Coastal Act
The policies of the Coastal Act prioritize that “maximum access, . . . and recreational opportunities shall be provided for all the people consistent with public safety needs . . . .” (Pub. Res. Code § 30210.) “Development shall not interfere with the public's right of access to the sea . . . .” (Id. at § 30211.) “Lower cost visitor and Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-14
PC-15
PC-15
PC-16
California Coastal Commission
April 10, 2025
recreational facilities shall be protected, encouraged, and, where feasible, provided.
Developments providing public recreational opportunities are preferred.” (Id. at § 30213.) “Oceanfront land suitable for recreational use shall be protected for recreational use and development unless present and foreseeable future demand for public or commercial recreational activities that could be accommodated on the property is already adequately provided for in the area.” (Id. at § 30221.) “The use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry.” (Id. at § 30222.)
These policies embrace—and specifically articulate—the paramount value of coastal access and visitor serving facilities. “[A] core principle of the Act is to maximize public access to and along the coast as well as recreational opportunities in the coastal zone.” (San Diego Unified Port Dist. v. California Coastal Com. (2018) 27 Cal.App.5th 1111, 1129.)
Even though the City did rely upon California’s Density Bonus Law, the Density Bonus Law “does not supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976.” (Gov. Code § 65915.) Here, however, for the reasons stated above, this project will defeat these aims.
It will hijack a substantial 2.6 acre tract of land that is paramountly situated to serve— and designated by prior conscious zoning for—visitor serving commercial facilities.
Having a three story wall of private bedrooms also creates a visual barrier to coastal access contrary to Public Resources Code section 30251. Although the area is not labeled as a highly scenic viewshed, the ocean is clearly visible from Highway 1 through the lot, and this view (and notice to the public) of coastal access would be destroyed.4 This reality is made clear by the photograph of the current view provided above and the juxtaposed artist’s rendering provided by the applicant.
V. The City Failed to Consider or Evaluate Major Traffic Considerations in a Manner Inconsistent with the Local Coastal Plan and Coastal Act The project is situated upon an arterial roadway that brings Fort Bragg the majority of its visitors.
Fort Bragg is built along Highway One which is also called Main Street within the City. Highway One is the only continuous north-south road serving the north coast of Mendocino County, providing a local 4 The three story height of the project—which would be superlatively above grade in the area—was a repeated point of concern in both written comments and public opposition at hearing.
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-16
PC-17
PC-18
California Coastal Commission
April 10, 2025
transportation corridor for many communities and the primary access route for visitors. Traffic volumes on this roadway have increased steadily over the years.
(General Plan, 5-C.)
The primary intersection in the area of the project is Ocean View Drive and Highway 1. The City of Fort Bragg’s own analysis has concluded that even prior to this project, the level of service at this intersection was in decline. (General Plan, Table C3.) Numerous local coastal plan policies focus on the importance of traffic considerations. It is a policy to “[e]nsure that the amount and phasing of development can be adequately served by transportation facilities.” (General Plan, Policy C-21.) To service this policy, the City Council is to “[r]eview development proposals for their direct and cumulative effects on roadway Level of Service standards. During the development review process, City staff will determine whether traffic studies need to be carried out and the scope of such studies. (General Plan. Program C-1.2.1.) The City is to “provide consistent standards for the City’s street system.” (General Plan, Policy C2.4.) The local coastal plan is clear that “[t]raffic studies shall be required for all major development proposals, including but not limited to, drive-through facilities, fast food outlets, convenience markets, major tourist accommodations, shopping centers, commercial development, residential subdivisions, and other generators of high traffic volumes that would affect a Level of Service. Traffic studies shall identify, at a minimum: (a) the amount of traffic to be added to the street system by the proposed development; (b) other known and foreseeable projects and their effects on the street system; (c) the direct, indirect, and cumulative adverse impacts of project traffic on street system operations, safety, and public access to the coast; (d) mitigation measures necessary to provide for project traffic while maintaining City Level of Service standards; (e) the responsibility of the developer to provide improvements; and (f) the timing of all improvements.” (General Plan, Policy C-2.6.) These requirements are further in accord with—and parallel—the policy objectives of the Coastal Act.
Numerous written comments and speakers addressed a myriad of traffic issues.
These concerns, however, were ignored. The City Council did nothing to address these concerns, nor did it make proper findings of fact in relation to traffic. Traffic is an important policy consideration here for multiple reasons. Among these is that the significant traffic of 87 units will create a barrier to recreational users and visitors accessing the coast at Todd’s Point and Pomo Bluffs. The only meaningful—and certainly only signalized—route from Highway 1 to coastal uses at Todd’s Point and Pomo Bluffs is the intersection of Highway 1 and Ocean View Drive. The Council never Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-20
PC-20
PC-20
PC-20
California Coastal Commission
April 10, 2025
meaningfully considered these traffic considerations. The traffic serving this 87 unit development being compressed through a single intersection will undoubtably create a barrier to visitor and recreational access.
Moreover, the City’s dismissal of traffic concerns was consistently defective. The City suggested that no traffic study was warranted solely because Caltrans determined no traffic study was warranted under their rubric. (Staff Report, p. 36.) Caltrans, however, is not charged with policing either local coastal plan consistency or the objectives of the Coastal Act. To the extent the City relied on any traffic study, the City merely looked at a years old study for a 7,500 square foot AutoZone commercial building. That, however, was a fundamentally different project both in the size, number of users served, and times of uses that would be relevant to a commercial/retail versus residential project. Additionally, the city’s failure to study cumulative and access related impacts particularly implicates Coastal Act sections 30210, 30211, and 30252.
With the City Council having failed to fundamentally review any traffic concerns, a major project is set to have major impacts upon both the physical environment of Fort Bragg—and recreational and visitor access—without any meaningful review.
VI. Conclusion
For the foregoing reasons, appellant Paul Clark respectfully prays that the Coastal Commission vacate the decision of the Fort Bragg City Council and enter a new and different decision denying the subject Coastal Development Permit.
Respectfully submitted,
Colin W. Morrow
Doc ID: 17838bc7fcf60f2c9673f3ebd618b369cec7988d
PC-20
PC-20
PC-21
JMA-1
JMA-2
JMA-3
JMA-4
JMA-5
JMA-6
JMA-7
JMA-8
JMA-9
JMA-10
JMA-11
JMA-11