Edwin C. Kisiel, Esq.
Kisiel Law
1205 Victory Walk
Laguna Beach, CA 92651
(949) 549-9650
[email protected]
March 11, 2026
City of Laguna Beach
Design Review Board
505 Forest Avenue
Laguna Beach, CA 92651
Re: Design Review Board Agenda Item 4.1 – Draft Resolution 2026-0148 APN: 053-124-18
Application: CDP 2026-0148
Address: 238 Chiquita Street
Dear Design Review Board Members:
I am writing regarding Agenda Item 4.1 for the March 12, 2026 Design Review Board meeting for Resolution 2026-0148 and Coastal Development Permit 2026-0148 for the proposed accessory dwelling unit (ADU) at 238 Chiquita Street in the City of Laguna Beach (the “property”). Due to the erroneous nature of the processing of the application for planning approval and Coastal Development Permit (CDP), on behalf of the property owner, Mr. Jonathan Lukoff, I recommend that the Design Review Board re-open the public hearing on this item, disapprove the draft Resolution 2026-0148, and remand the project to the Director of Community Development for ministerial processing of the project and CDP in accordance with the clear requirements of state law.
We assert that the City’s proposed action to discretionarily deny Mr. Lukoff’s ADU and the accompanying draft resolution rests on incorrect factual and legal bases and is tantamount to an unconstitutional taking of Mr. Lukoff’s property rights. Since Mr. Lukoff owns a 4,500 square-foot R-2 zoned lot, Mr. Lukoff is entitled to build not only an ADU, but also a second main dwelling unit, under Laguna Beach Municipal Code (“LBMC”) §§ 25.12.004; 25.12.008.
Here, Mr. Lukoff is seeking to build an ADU consistent with his rights under Gov. Code §§ 66310, et seq. (“State ADU Law”). Furthermore, the City’s proposed action, the draft resolution, and the highly irregular nature of this proceeding do not comport with either of the Coastal Commission’s handling of similar cases or the City’s handling of similar cases. The City’s processing of Mr. Lukoff’s application for a discretionary hearing is contrary to State ADU Law and the Permit Streamlining Act. Most importantly, the City’s stated positions and proposed action would constitute a regulatory taking under Fifth Amendment jurisprudence.
Erroneous Factual Bases for the Proposed Action
There are several erroneous assertions within the staff report and the draft resolution denying a CDP that render the City’s proposed action unsupportable and subject to litigation risk.
Attachment 12
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2 The factual findings of the draft resolution are flawed. With regard to the visual compatibility finding, the draft resolution fails to note that there are two-story homes and twostory ADUs within the neighborhood. This property is in close proximity to 1673 Louise Street, where the City approved a second-story ADU over neighbor opposition. Additionally, as was alluded to during the February 26, 2026 hearing, there is a mix of one- and two-story homes in the Hillcrest neighborhood of North Laguna, including apartment buildings with up to four units.
In the 1673 Louise Street approval, the City made that a finding for a second-story ADU was met because the surrounding areas “consist of both one-story and two-story homes” (CDP 25-0036).
Mr. Lukoff disputes the City’s assertion that the application is “incomplete” and asserts that his application is deemed complete by operation of law under the Permit Streamlining Act.
Pursuant to Gov. Code § 65943, for a government agency to deem an application incomplete, the list of incomplete items “shall be limited to those items actually required on the lead agency’s submittal requirement checklist.” When Mr. Lukoff’s architect submitted the application on November 8, 2024, it is Mr. Lukoff’s position that the City did not request a certified staking plan in its checklist for the application, which is why Mr. Lukoff has not provided staking for the project. In the November 2024 timeframe, staking plans were not a City-mandated ADU application requirement but is instead a more recent demand. Previously, the approach was that only projects requiring Design Review needed a certified staking plan. Additionally, the City was holding Mr. Lukoff’s application as “incomplete” in order to extort peer review fees for consultant reports that had been obtained prior to the submission of the application in order to conduct a regulatory taking. In order to more fully develop this argument, we are awaiting the results of Public Records Act requests 2026-0149 and 2026-0150. Indeed, with regards to Mr.
Lukoff’s ADU application, the City has consistently moved the goalposts and made demands that are not permitted under Gov. Code § 65943, which applies to ministerially-handled projects. The City’s processing of Mr. Lukoff’s ADU application for a hearing of the Design Review Board also shows an indication that the City is indeed treating Mr. Lukoff’s application as complete; otherwise, the City would have simply refused to process it.
Finally, there is a difference of opinion between Mr. Lukoff’s consultant and the City’s consultant regarding potential effects to historic resources. Mr. Lukoff’s consultant correctly identified the historical characteristics of the home being the upper story windows and roof gable that is still visible with Mr. Lukoff’s design. The City’s consultant incorrectly asserts that Mr.
Lukoff’s entire front façade is historical, including the modifications made to the front entry that the City has previously asked Mr. Lukoff to change to make it more historically accurate. From a factual standpoint, the City cannot have it both ways. This is all a clear indication that the City is applying subjective standards and not objective standards to Mr. Lukoff’s project. Under Gov.
Code 66313(i), “‘objective standards’ means standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant ... and the public official prior to submittal.” The fact that the City seeks to deny Mr. Lukoff’s project based on dueling consultant reports that come to different conclusions shows that the City is applying subjective, and not objective standards.
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3 Flimsy Legal Grounds for the Proposed Action
If the City persists in approving the draft resolution and denying the CDP, the City’s action rests on dubious legal standing. The Coastal Act and the LCP cannot be used to employ widespread subjective criteria to deny projects and effect regulatory takings as an end run around State ADU law and a property owner’s rights under the California and U.S. Constitutions. While Gov. Code § 66329 holds that the provisions of the Coastal Act (and processing for CDPs) applies, the State ADU law applies on non-coastal matters such as historic resources, building setbacks, and lot coverage that are not protected by the Coastal Act.
There is no adverse impact to coastal resources by Mr. Lukoff’s proposed project. First, the level of impact to find a significant adverse effect is not met. Second, the draft Resolution erroneously conflates a historic property with coastal resources.
With regard to the standard of adverse effect, both case law and recent Coastal Commission appeals, applied a significance standard. In order for adverse impact to apply, there has to be significant impact to coastal resources. Pub. Res. Code § 30250(a); LT-WR v.
California Coastal Commission (2007), 152 Cal.App.4th 770, 797-99 (evaluating adverse impacts according to a significance standard). See, e.g., Appeal No. A-6-PEN-23-0053 (not significant adverse impact when project blocked “fleeting” views from public roadway); Appeal No. A-6-DMR-22-0034 (found that an obstructed view from a certain point does not constitute substantial view impact because the view is unobstructed once the individual moves along); City of Laguna Beach Coastal Development Permit 2025-0036 (finding lack of significant adverse effect when one can walk five yards away and see the protected ridgeline). In the case of the proposed action, while there would be minor view blockage of a peripheral view if a person is standing in a particular spot on Chiquita Street, there would be no view blockage a few steps further up the street. Also, Chiquita Street is a residential street and not an arterial road or one of the protected main view corridors of Coast Highway or Laguna Canyon Road. There is no stoplight at the intersection of Chiquita Street on Coast Highway. Members of the public are not likely to be using Chiquita Street except for visiting the homes on this street. Also, the primary view from the public street is down Chiquita Street, which opens onto Crescent Bay, and not across Mr. Lukoff’s property.
If the City were to take the view espoused in the draft resolution that Mr. Lukoff’s proposed ADU creates an adverse effect because of slight view curtailment, then it would preclude most development in Laguna Beach, making it impossible for the City to meet its housing obligations under the Housing Accountability Act and Housing Element. If Mr.
Lukoff’s project were ineligible for a CDP based on public view impacts, it would be difficult in many ways to allow development in this City at all. As Councilmember Kempf noted in a similar situation involving public views and a two-story ADU, the City may not like the law, but as a city in California, it is required to follow California law.
A historic home is not a coastal scenic resource. There is no express definition provided within the LCP or Coastal Act of “coastal resource,” aside from temporary use CDPs, where coastal resources are defined within LBMC 25.07.006, as “public access opportunities, visitor and recreational facilities, water-oriented activities, marine resources, biological resources, 234
4 environmentally sensitive areas, agricultural lands, and archaeological or paleontological resources.” Furthermore, the 1984 Laguna Beach Coastal Land Use Plan Technical Appendix discusses scenic or visual resources as “views from public areas such as highways, beaches, parks and vista points,” with a main focus being “property situated adjacent to the major transportation systems in the city, i.e., Laguna Canyon Road and Pacific Coast Highway, since it is along these roadways that a majority of residents and non-residents view the community and have visual access to scenic corridors.” Furthermore, neither the review criteria under LBMC §
25.07.012(F) nor the findings at (G) expressly mention historic properties. The draft resolution is in error because historic properties are not contemplated within the concept of a coastal scenic resource, and the draft resolution fails to make the connection to the language of the LCP.
Outside of narrow range of resources regulated by the Coastal Act, it is the State ADU law, and not the City’s subjective design review process, that applies. Under State ADU Law, a city “shall ministerially approve an application for a building permit within a residential or mixed-use zone” to create specified units (emphasis added). Gov. Code § 66323(a). This includes one detached ADU that has four-foot side and rear setbacks that is no more than 800 square feet of livable space and not taller than 16 feet in height. Gov. Code § 66323(a)(2).
Furthermore, a local agency “shall not impose any objective development or design standard that is not authorized by this section” for a qualifying project. Mr. Lukoff’s project is a qualifying project under Gov. Code § 66323(a)(2). It is a detached ADU that abides by 4-foot side and rear setbacks, is under 800 square feet, and is no taller than 16’ in height from the finished floor.
Even where Gov. Code § 66323(a) by-right approval does not apply, in evaluating an application under Gov. Code § 66314(b)(1), a city may only “[i]mpose objective standards on accessory dwelling units that include, but are not limited to, parking, height, setback, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places” (emphasis added). A listing under the City’s Historic Register is not a listing on the California Register of Historic Places. In fact, in review of the California Register of Historic Places, within the City of Laguna Beach, only the Museum of Art, Mariona, and St. Francis Catholic Church are listed, not the subject property. See, California Historic Resources, available at https://ohp.parks.ca.gov/ ListedResources/?view=county&criteria=30 (last visited Mar. 10, 2026).
The processing of Mr. Lukoff’s application also raises an Equal Protection issue under the Fourteenth Amendment. Mr. Lukoff appears to have been singled out for disparate treatment by having had his application heard by the Design Review Board when ADUs are mandated to be ministerially processed under Gov. Code § 66317(a). Under LBMC § 25.07.012(D), when only a CDP is required, such as a ministerially approved ADU, the CDP decision is within the purview of the Director of Community Development, not the Design Review Board. Moreover, the City is not following the requirements of Gov. Code § 66317(b), which states, If a permitting agency denies an application for an accessory dwelling unit pursuant to subdivision (a), the permitting agency shall, within the time period described in subdivision (a), return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.
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5 Additionally, “No local ordinance, policy, or regulation, other than an accessory dwelling unit ordinance consistent with this article shall be the basis for the delay or denial of a building permit or a use permit under this section” per Gov. Code § 66317(d). The City’s proposed action violates both of those State ADU Law requirements. The City proposes to issue Mr. Lukoff a blanket denial based on non-coastal and non-ADU ordinance bases with no direction on how Mr.
Lukoff could remedy any purported defective items.
The City appears to take a position that Gov. Code § 66329(a) allows the City to impose the provisions of the ordinary zoning code to deny ADU projects based on lot coverage and front yard setbacks. For instance, staff has made the assertion that because the City’s entire zoning code is incorporated wholesale into the LCP, the City escapes the requirements of State ADU Law entirely since it can use of the standard provisions of the zoning code to prevent ADU construction. Under Gov. Code § 66321(b)(3), a city may not impose:
Any requirement for a zoning clearance or separate zoning review or any other minimum or maximum size for an accessory dwelling unit, size based upon a percentage of the proposed or existing primary dwelling, or limits on lot coverage, floor area ratio, open space, front setbacks, and minimum lot size, for either attached or detached dwellings that does not permit an accessory dwelling unit with at least 800 square feet of interior livable space and with four-foot side and rear yard setbacks to be constructed in compliance with all other local development standards.
Under canons of statutory construction, a statute that speaks to a specific matter applies over a general statute. Additionally, the State ADU law “shall supersede a conflicting local ordinance.” Gov. Code § 66325. Here, although the City is able to consider coastal impacts under the Coastal Act per Gov. Code § 66329(a), the City is abusing its authority to assert that on issues not contemplated by the Coastal Act, that the LCP can wholesale override provisions of the State ADU Law. Even more telling is that whilst other cities have sought review of their ADU laws by the California Department of Housing and Community Development as required by Gov. Code § 66326(a), the City of Laguna Beach does not appear to have done so with either Ord. 1713 or Ord. 1715, which were passed after the enactment of Gov. Code § 66326.
The Mills Act does not provide cover for the City to conduct a regulatory taking of Mr.
Lukoff’s property rights under State ADU Law. Mr. Lukoff purchased the property in 2007 and entered into a Mills Act contract in March 2009. No clause in the Mills Act contract waives Mr.
Lukoff’s rights to improve his property, as long as he complies with the terms of the contract.
For instance, while he is prohibited from demolition of the house or exterior alterations not within Secretary of the Interior Standards, Mr. Lukoff’s proposal is for a detached structure that does not physically alter or add onto the existing Mills Act residence. Under SB 131, which creates the “near miss” category of CEQA processing, a City-registered historic home is not a barrier to the project under CEQA. The Board seems to believe that Mr. Lukoff consented to waive his Fifth Amendment rights when he signed onto the Mills Act because of the tax break associated. Mr. Lukoff received consideration of tax breaks under the Mills Act to provide for the upkeep and maintenance of his historic property. The Fifth Amendment standard for a taking is “just compensation,” not a tax break. By entering into the Mills Act contract, Mr. Lukoff did not receive just compensation and did not consent to a taking of his property rights under the State ADU Law as the Design Review Board deliberation and the draft resolution seeks to allege. 236
6 The City’s purported legal arguments in the staff report and draft Resolution 2026-0148 to weaponize the LCP against Mr. Lukoff’s proposed project are not only contrary to the stated provisions of State ADU Law but also would also constitute an unconstitutional regulatory taking to deprive Mr. Lukoff of his ability to make an economically viable use of his property based on reasonable investment-backed expectations. When Mr. Lukoff purchased 238 Chiquita Street in 2007, before the Mills Act contract and well before the State ADU Law, Mr. Lukoff understood that his R-2 lot was sufficient in size under the City Zoning Code to allow the construction of two primary dwelling units. Furthermore, Mr. Lukoff has an expectation of the ability to construct an ADU pursuant to State ADU Law. The City’s clear position, from its consultant report through the deliberations of the Design Review Board, and current City ordinances, makes clear that the City would not approve any ADU on Mr. Lukoff’s property.
This is a classic regulatory taking under Fifth Amendment jurisprudence. The City’s proposed action would deprive Mr. Lukoff of his constitutional property rights without providing just compensation, which creates a high level of litigation risk for the City.
Conclusion
We recognize that there is tension between the California Coastal Act and the California ADU Laws, both of which apply to Mr. Lukoff’s project. The City’s proposed action in the draft resolution does not follow either, however. The City is not appropriately harmonizing to resolve the tension and is instead asserting Coastal Act to bootstrap draconian discretionary requirements on non-Coastal Act issues to deprive Mr. Lukoff of his right to construct an ADU that meets the specific requirements of state law on the Property. Any potential impact to public ocean views does not rise to the level of substantial impairment. Furthermore, Mr. Lukoff is being singled out for disparate treatment by the City as compared to other property owners. Finally, if the City were to adopt the approach to Mr. Lukoff’s property wholesale City-wide, the City risks encountering widespread litigation from property owners, project applicants, and the Department of Housing and Community Development (HCD) for violation of the Housing Accountability Act, State ADU Law, Permit Streamlining Act, Coastal Act, and the U.S. and California constitutions.
Thank you for your consideration of these comments regarding the draft Resolution 2026-0148 and Coastal Development Permit 2026-0148. We urge the Design Review Board to disapprove the draft resolution and remand the project to the Community Development Director to process Mr. Lukoff’s application according to the requirements of the State ADU Law.
Kind regards,
Edwin C. Kisiel, Esq.
Attorney
Counsel for Mr. Jonathan Lukoff
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