August 8, 2022
The Honorable Donne Brownsey, Chair
California Coastal Commission
455 Market Street, Suite 300
San Francisco, CA 94105
(415) 904-5202
Subj: Substantial Issue Determinations for Appeal Nos. A-2-PAC-22-0031 and A-2-PAC-22-0031, City of Pacifica Temporary Safe Parking Program on Bradford Way and San Pedro Avenue (August 2022 Meeting, Agenda Items F7a and F7b)
Dear Chair Brownsey:
The City of Pacifica (“City”) enacted an ordinance to authorize parking of certain oversized vehicles in the public right-of-way across Pacifica, including areas inside and outside the Coastal Zone, as part of the Temporary Safe Parking Program (“TSPP”).
1 The City has issued coastal development permits (“CDPs”) to authorize three TSPP parking locations in the Coastal Zone, comprised of five total spaces. Two of the TSPP parking locations have been appealed to the California Coastal Commission (“CCC”) and are the subjects of the two above-referenced substantial issue determinations. These parking locations each have two spaces. The third TSPP parking location in the Coastal Zone, comprised of one space, is the subject of a separate local appeal to the Pacifica City Council that is scheduled to be heard on August 8, 2022.
The above-referenced appeals are without merit and have not raised any substantial issues related to Coastal Act consistency. CCC staff has acknowledged as much in its analysis. The City’s actions to issue the CDPs for the TSPP were supported by substantial evidence. Moreover, the CDPs issued by the City would be consistent with Pacifica’s certified Local Coastal Program, and contained conditions of approval to protect coastal resources including measures to prevent illicit dumping of sewage and to ensure safe disposal of trash. Nevertheless, CCC staff has attempted to expand the CCC’s substantial issue determinations to consider matters that were not the subject of the City’s issuance of the CDPs to implement the TSPP. Specifically, CCC staff has claimed that the CCC should find a substantial issue with both City-issued CDPs to address its concerns with a separate action by the City to enact an ordinance on January 27, 2020, to regulate oversized vehicle parking (“OSV Ordinance”). 2 The appeals should be denied for several reasons. First, alleged impacts of the City’s OSV Ordinance are the sole basis for CCC staff’s recommendation that the CCC find a substantial issue. However, the CCC lacks appellate jurisdiction to approve, modify, or deny the OSV Ordinance in connection with the appeals. Second, the appeals do not raise a substantial issue. Finally, even if the CCC has jurisdiction to consider the OSV 1 City of Pacifica Ordinance No. 873-C.S., adopted on March 14, 2022. 2 City of Pacifica Ordinance No. 866-C.S., adopted January 27, 2020.
CITY OF PACIFICA
Planning, Building, and Code Enforcement
540 Crespi Dr. • Pacifica, California 94044-3422
(650) 738-7341 • www.cityofpacifica.org
MAYOR
Mary Bier
MAYOR PRO TEM
Tygarjas Bigstyck
COUNCIL
Mike O’Neill
Sue Vaterlaus
Scenic Pacifica Sue Beckmeyer
Incorporated Nov. 22, 1957
Substantial Issue Determinations for Appeal Nos. A-2-PAC-22-0031 and A-2-PAC-22-0031, City of Pacifica Temporary Safe Parking Program on Bradford Way and San Pedro Avenue (August 2022 Meeting, Agenda Items F7a and F7b)
August 8, 2022
Ordinance in the context of the above-referenced appeals (it does not) CCC staff’s contention that the OSV Ordinance is “development” that requires a CDP is incorrect.
1. The CCC Lacks Jurisdiction To Consider the OSV Ordinance in Connection with the Appeals
The Coastal Commission’s jurisdiction extends only to the review of the “development” on appeal. (Schneider v. Cal. Coastal Comm’n (2006) 140 Cal.App.4th 1339, 1345; 14 CCR § 13113.) Indeed, the CCC may only “approve, modify, or deny [the] proposed development” that is the subject of the appeal. (Pub. Res. Code § 30625(a).) Here, CCC staff determined that (1) “the City-approved project should not significantly alter or affect existing access”; and (2) “Appellant’s habitat contentions do not raise a substantial Coastal Act or LCP issue.” Nevertheless, CCC staff recommended that the CCC find a “substantial issue” over concern that the City’s years-old OSV Ordinance may adversely impact the “unsheltered community.” However, CCC staff’s opinion that the TSPP and OSV Ordinance are “inextricably linked” is erroneous. The OSV Ordinance was lawfully adopted in January 2020 and is being enforced within the Coastal Zone to regulate OSV parking.3 Relevant facts pertaining to the OSV Ordinance include the following:
• The OSV ordinance’s parking standards are safety-based and driven primarily by street width. Given the City’s age, there are many narrow streets which results in various safety challenges for multi-modes of transportation based on those street widths. For instance, OSV obstruction of traffic safety sight lines within 100 feet of an uncontrolled intersection, and obstruction of bike lanes/bus routes forcing those street users to veer outside their normal paths of travel. Unregulated parking of OSVs jeopardizes public health and safety of both OSV and non-OSV visitors to the Coastal Zone due to the increased potential for collisions.
• The OSV ordinance has no time of day restrictions other than those generally applicable to parking of all vehicles, such as a 72-hour parking limit. Coastal visitors operating all types of vehicles that may lawfully operate on roads in California would continue to enjoy parking access in the Coastal Zone within Pacifica for up to 72 hours in any given parking space. • The City has prepared a map of allowable OSV parking locations.4 The map demonstrates there are ample parking locations in northern, central, and southern Pacifica. Even with the 100-foot intersection standard, the long blocks in the mapped areas facilitate OSV parking and would not result in an effective prohibition as may be the case in other jurisdictions.
The TSPP, in contrast, was enacted by ordinance in 2022. Unlike the OSV Ordinance – which prohibits oversized vehicle parking on certain streets – the TSPP Ordinance allows program participants (i.e., members of the unsheltered community) to park in designated spaces for up to 29 days while pursuing long-term housing opportunities. Thus, the primary impact of a substantial issue determination on the appeals is that opportunities for lawful habitation as part of the TSPP would be delayed for at least four individuals/families until the appeals are resolved.
3 The City agreed to not enforce the OSV ordinance citywide upon issuance of a preliminary injunction by the San Mateo County Superior Court based on the stipulation of the parties in the case of Geary et al. v. City of Pacifica, Case No. 3:21- cv-01780. The City resumed OSV ordinance enforcement citywide upon the launch of the TSPP program in July 2022.
The TSPP requires twice-monthly sewage servicing of program participants’ OSVs by a mobile dumping station. The staff report states “bimonthly” servicing which could be incorrectly interpreted to mean every two months. 4 Interactive OSV Ordinance parking location map.
Substantial Issue Determinations for Appeal Nos. A-2-PAC-22-0031 and A-2-PAC-22-0031, City of Pacifica Temporary Safe Parking Program on Bradford Way and San Pedro Avenue (August 2022 Meeting, Agenda Items F7a and F7b)
August 8, 2022
The Planning Commission did not consider a CDP for the OSV Ordinance (which, as explained below, is not a “development”). It considered “developments” comprised of two designated oversized parking spaces on Bradford Way (Appeal No. A-2-PAC-22-0029) and two designated oversized vehicle parking spaces east of San Pedro Avenue (Appeal No. A-2-PAC-22-0031). Accordingly, the Commission lacks jurisdiction in this appeal to “approve, modify, or deny” the OSV Ordinance. (See Pub. Res. Code § 30625(a).)
2. The Appeals Do Not Raise a Substantial Issue
Regardless, the appeals do not present a substantial issue. When determining whether an appeal raises a substantial issue, the Commission may consider the following factors: (1) the degree of factual and legal support for the local government’s decision; (2) the extent and scope of the development as approved or denied by the local government; (3) the significance of the coastal resources affected by the decision; (4) the precedential value of the local government’s decision for future interpretations of its local coastal program; and (5) whether the appeal raises only local issues as opposed to those of regional or statewide importance. (14 CCR § 13115(c)(1)-(5).) The “developments” on appeal do not raise a substantial issue under any of these factors.
First, the CCC staff report admits that the “developments on appeal” – i.e., the reservation of two oversized vehicle parking spaces on Bradford Way and east of San Pedro Avenue – “should not significantly alter or affect existing access” and do not raise “substantial Coastal Act or LCP issue[s]” with respect to habitat impacts.
Concern over the OSV Ordinance’s impact on the “unsheltered community’s” ability to park oversized vehicles in the coastal zone is the sole basis for CCC staff’s recommendation that this factor weighs in favor of finding a substantial issue. However, the pending appeals challenge the City’s effort to reserve four public parking spaces in the Coastal Zone for the “unsheltered community.” The OSV Ordinance, which is not the subject of the appeals, is the law that restricts oversized vehicle parking in the City. As explained herein, the CCC lacks jurisdiction to review the OSV Ordinance in this appeal.
Second, the extent and scope of the “development” approved by the Planning Commission does not raise a substantial issue. As the CCC staff report admits, the Bradford Way “development is limited to two 30-foot by 10-foot designated parking spaces with a 10-foot no parking buffer at each end.”5 It “encompass[es] an 800 square-foot area on an already paved street where vehicle parking is currently occurring.” Similarly, the San Pedro “development is limited to two 30-foot by 10-foot designated parking spaces” occupying “in total . . . a 600 square-foot area on an already partially paved area where general public parking currently occurring.” The impact of these “developments” on coastal access is de minimis by any standard.
Third, as the CCC staff report admits, the developments on appeal will not have a significant impact on coastal resources. Indeed, the CCC staff reports admit that the proposed projects are located on paved streets/parking areas that already allow for public parking, and the nearest coastal access points and habitat areas are sufficiently far enough away that the City-approved developments are unlikely to affect those resources. Again, the OSV Ordinance is the sole basis for CCC staff report’s recommendation that this factor weighs in favor of finding a substantial issue. As explained above, the Commission lacks jurisdiction to review the OSV Ordinance in this appeal.
5 The Bradford Way parking location would allocate approximately 70 feet of public right-of-way to the TSPP, not 80 feet as indicated in the staff report. The spaces total 60 linear feet with a condition of approval requiring a buffer area on either side of the spaces of at least 5 linear feet.
Substantial Issue Determinations for Appeal Nos. A-2-PAC-22-0031 and A-2-PAC-22-0031, City of Pacifica Temporary Safe Parking Program on Bradford Way and San Pedro Avenue (August 2022 Meeting, Agenda Items F7a and F7b)
August 8, 2022
Fourth, the City’s approval of “developments” that reserve four existing parking spaces for oversized vehicle parking has no precedential value for its future interpretations of its Local Coastal Program. Despite it contrary conclusion, the CCC staff report offers no analysis or explanation for how the City’s approval of the developments has any precedential value whatsoever. The bare assertion of precedential value does not make it so.
Finally, the City’s approval of the “developments” on appeal does not raise issues of regional or statewide significance. Again, the OSV Ordinance is the sole basis for CCC staff’s recommendation that this factor weighs in favor of finding a substantial issue. As explained above, the Commission lacks jurisdiction to review the OSV Ordinance in this appeal.
In this case, none of the factors weigh in favor of a determination that the appeals of the “developments” subject to the City-issued CDPs present a substantial issue. Accordingly, it would be an abuse of discretion for the CCC to find a substantial issue.
3. The Coastal Act Does Not Require the City to Obtain a CDP for the OSV Ordinance Finally, both CCC staff reports repeatedly allege that the City violated the Coastal Act by adopting the OSV Ordinance without obtaining a CDP. However, CCC staff failed to disclose that the City has disputed their assertion that the OSV Ordinance is a “development” that requires a CDP since 2019, and the Commission has taken no enforcement action against the City since the OSV Ordinance was adopted in 2020.
In December 2019, the City received correspondence regarding CCC staff’s position that the then-proposed OSV Ordinance was a “development” requiring a CDP because it would result in a “change in the density or intensity of use of land.” (Pub. Res. Code § 30106.)
The City disagreed. In an email dated January 23, 2020, the City explained that the OSV Ordinance is a traffic ordinance that merely prohibits oversized vehicles from parking at locations that present a public safety hazard.
Specifically, the OSV Ordinance prohibits oversized vehicles from parking (1) on public streets with a road width of less than forty (40) feet of width; (2) within one hundred (100) feet of any uncontrolled intersection; (3) at locations that encroach on an identified bicycle lane with defined boundaries; (4) on any public streets that restrict the travel lane to less than 10 feet wide; and (5) at locations that encroach on a public bus route. Land previously used for parking will continue to be available for parking. Because the OSV Ordinance does not “change the density or intensity of [the] use of land” it does not require a CDP.
CCC staff responded by reiterating their position that “implementation of the [OSV] ordinance will include changes to the intensity of use of land and access to water under the definition of development in both the Coastal Act and the City’s certified LCP.” Specifically, CCC staff argued that implementation of the OSV Ordinance would adversely impact access to the coast because “14 of the 21 access points outlined in the Access Component of the City’s certified LUP overlap with roads specified in the” Ordinance.
In response, the City carefully reviewed the access points set forth in the Access Component of the City’s certified local coastal land use plan (“LCLUP”) and other areas of the City’s certified LCLUP relating to parking. The City then compared those access points to the OSV Ordinance and determined that (1) 18 of the 21 access points identified in the City’s LCLUP provide direct access to the coast; and (2) oversized vehicle parking remains available on the street or in a public parking lot at all 18 of those access points.
Substantial Issue Determinations for Appeal Nos. A-2-PAC-22-0031 and A-2-PAC-22-0031, City of Pacifica Temporary Safe Parking Program on Bradford Way and San Pedro Avenue (August 2022 Meeting, Agenda Items F7a and F7b)
August 8, 2022
The OSV Ordinance does not eliminate, increase the cost of, or otherwise make unavailable a single public parking space in the Coastal Zone. Moreover, while it restricts oversized vehicle parking in certain locations for safety reasons, the City ensured that parking for oversized vehicles remains available on a public street or in a public parking lot at all access points that provide direct access to the coast.6 Thus, the OSV Ordinance will not result in increased or decreased automobile or pedestrian traffic in the Coastal Zone. (Compare with Surfrider Foundation v. Martins Beach 1, LLC (2017) 14 Cal.App.5th 238, 252 [erection of gate obstructing public access was “development” under Public Resources Code section 30106 because it decreased intensity of use of water].) Because the OSV Ordinance will not change the intensity of the use of land or water in the Coastal Zone, it is not a “development” that requires a CDP.
CCC staff’s suggestion that the Commission should consider whether the OSV Ordinance requires a CDP in the context of these appeals is improper and would deny the City due process. The OSV Ordinance was not the subject of the CDP proceedings addressed in the appeals. Therefore, it would be inappropriate to utilize the substantial issue and subsequent appeals processes as a preemptive component of Coastal Act enforcement.
Thank you for considering the City’s comments in this matter. Please contact me should you have any questions: [email protected] or (650) 738-7409.
Sincerely,
Kevin Woodhouse
City Manager
6 Interactive OSV Ordinance parking location map