PISMO BEACH COUNCIL AGENDA REPORT
Agenda Item #11.B
SUBJECT/TITLE:
APPEAL OF THE PLANNING COMMISSION DENIAL OF PROJECT NO. P22-000004,
A REQUEST FOR A COASTAL DEVELOPMENT PERMIT AND VARIANCE TO
DEVELOP A RAINWATER COLLECTION AND RETENTION SYSTEM FOR AN EXISTING RESIDENCE. LOCATION – 3990 SHELL BEACH ROAD. THE PROJECT IS
WITHIN THE COASTAL ZONE AND IS NOT APPEALABLE TO THE COASTAL COMMISSION.
RECOMMENDATION:
Adopt a Resolution denying the appeal and upholding the Planning Commission denial of Project No. P22-000004 and making a determination of exemption under CEQA.
Location – 3990 Shell Beach Road. APN 010-154-037.
EXECUTIVE SUMMARY:
On April 25, 2023, the Planning Commission denied Project No. P22-000004, a request for a Coastal Development Permit and Variance to develop a rainwater collection and retention system for an existing residence at 3990 Shell Beach Road. The property owner and applicant filed a timely appeal of the Planning Commission’s decision, and the appeal is now being brought before the City Council for consideration. Staff recommends the City Council deny the appeal and uphold the Planning Commission’s denial of the project due to the project being inconsistent with the General Plan and Zoning Code.
BACKGROUND:
The project site is an approximately 2.5-acre lot, located at 3990 Shell Beach Road, within the Sunset Palisades (A-2) Planning Area, and the Open Space-Natural Resources Protection Zone (OS-1, 1983 Coastal Zoning Code). The project site is also within the Archaeologically Sensitive Overlay, Height Limitations (HL-3) Overlay, Noise Overlay, Open Space Overlay, and View Considerations Overlay.
The purpose of the OS-1 Zone is to implement the intent and recommendations and requirements of the environmental issues section of the General Plan/Local Coastal Program (GP/LCP) Land Use Plan and to protect the city's natural resources, as identified in the GP/LCP Land Use Plan. This is primarily accomplished through the use of open space and minimizing structural improvements in these areas.
In accordance with Section 17.051.020 of the 1983 Zoning Code, if a property owner demonstrates to the City's satisfaction that the non-structural open space uses do not permit a feasible and beneficial use of the property, a Conditional Use Permit can be sought for the development of one residential unit. In such cases, specific regulations relating to minimizing structural improvements on a lot would apply, such as:
Maximum allowable residential development (lot coverage) – Residential uses (including buildings, parking, landscaping, gardening, outdoor living, and other
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uses) shall not exceed 60% of the lot or 5,000 square feet, whichever is less. (GP/LCP Policy LU-A-8 and 1983 Zoning Code Section 17.051.030) Maximum allowable residential unit size – The residential unit size shall not exceed 60% of the lot area or 2,000 square feet, whichever is less. (1983 Zoning Code Section 17.051.030)
Maximum allowable structure height – The height of any structure shall not exceed 15 feet above natural grade and no portion of any structure shall obscure the view of the ocean downward from the level of the freeway sight position. (1983 Zoning Code Section 17.051.030)
Required open space easement recordation – A permanent open space easement shall be recorded over any portion not occupied by a structure, driveway, or residential living area. (1983 Zoning Code Section 17.051.030) Existing Development
On October 14, 2003, the Planning Commission approved a Coastal Development Permit (CDP), Conditional Use Permit (CUP), and Variance for the development of a new 6,384- square-foot single-family residence with related improvements on the project site (Attachment 2).
The Variance request was to allow the residential unit to greatly exceed the 2,000-square- foot limit on residential unit size and 15-foot height limit. The Planning Commission supported the Variance request because the applicant was able to demonstrate that the development requirements severely limited the development potential of the lot, when compared to other lots in the surrounding planning areas under similar situations.
While the previous property owner had installed landscaping (which is considered development in the OS-1 Zone) without permits, the Planning Commission eliminated a condition of approval that would have required the previous property owner to remove the then-existing landscaping because it exceeded the 5,000-square-foot limit on residential development on the lot. At the time, it was unclear what the total square footage of improved landscape area was. This action recognizing the then-status quo should not be interpreted to mean that landscaping would never thereafter be considered in determining the maximum allowable development in future projects. Furthermore, the Planning Commission required the previous property owner to maintain all plantings at a height that does not exceed the high point of the roof. It is not clear that this condition has been complied with as there are currently several large trees on the property.
Subsequent to the approval of the residential project, the previous property owner made additional unauthorized improvements to the lot while refusing to record the required open space easement. Litigation ensued and, as part of the settlement of the case (Attachment 3), the property owner recorded an open space easement over the portions of the lot that were, at that time, not otherwise developed. Also, as part of the settlement, the City agreed that it would not require the then-existing “development” to be removed.
The recorded open space easement covered a significantly smaller portion of the lot than would have been covered by the originally required open space easement. Put another
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way, the previous property owner received the benefit of developing a significantly larger portion of the lot than would have been allowed under the OS-1 zoning.
Since development within the open space easement is prohibited, the recordation of the open space easement essentially created an approximately 27,000-square-foot envelope (square footage estimated by City staff using Google Earth) where allowable development could occur. The open space easement cannot be altered without the approval of the City. Specifically, the open space easement states:
[the property owner] hereby records this open space easement over any portion of said property not occupied by a structure or driveway or other developed areas, as shown on the site plan attached as Exhibit A. This easement cannot be altered without approval of the City of Pismo Beach.
Due to the previously approved Variance and subsequent settlement, however, the existing development within the development envelope already substantially exceeds the maximum allowable lot coverage on the project site. As a result, although such envelope represents areas of the site where allowable development could occur if the lot was bare land, no additional development may occur as development on the site already significantly exceeds the OS-1 development standards. It is therefore expected that over time, any re-development of the property will eventually be brought back into compliance with the original CDP, CUP, and Variance approval.
Project Description (Project No. P22-000004)
Project No. P22-000004 was an application made by the current property owner for a Coastal Development Permit and Variance to develop a rainwater collection and retention system for the existing residence, for landscape irrigation purposes. The proposed project included installing ten new, approximately 5,000-gallon rainwater retention tanks approximately eight feet in diameter and 12 feet in height each, along with a new underground sump that would have utilized an existing 320 linear foot sleeve to convey water to the new tanks. The rainwater retention tanks were proposed to be located on the northeast corner of the project site, directly west and downslope from Highway 101 and within the development envelope noted on the recorded open-space easement.
Planning Commission Decision
The Planning Commission considered Project No. P22-000004, along with public comments and staff analysis, at public hearings held on February 22, 2022; January 10, 2023; January 24, 2023; and April 25, 2023. Staff analysis demonstrated that, while perhaps well-intended, the project is not consistent with the GP/LCP or 1983 Zoning Code, as the existing lot coverage already significantly exceeds the allowable lot coverage by approximately 25,000 square feet and the project would further exacerbate this nonconformity by expanding even further the lot coverage beyond what was permitted through the previously-approved Variance. The staff reports for these Planning
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Commission hearings, including complete project description, staff analysis, and related discussion, can be found in the Access Pismo1 online public records portal.
On April 25, 2023, the Planning Commission adopted Resolution PC-R-2023-013 denying the project (Attachments 4 and 5).
Appeal of Planning Commission Decision
On May 4, 2023, Andrew Grow, the applicant of the denied project (Appellant), filed a timely appeal of the Planning Commission decision (Attachment 6) to deny the requested CDP relating to Project No. P22-000004. The Appellant provided the following statement as the basis for the appeal:
The project is a rainwater collection and retention system for an existing residence.
The Planning Commission erred in denying the project, because it is fully consistent with the General Plan/Local Coastal Program or 1983 Zoning Code, as well as a 2016 court settlement with the City that authorized development in the project area. The project can and should be approved, especially given the environmental benefits associated with the project.
According to the filed appeal and based on the lack of reference to the previously- requested Variance in the Appellant’s statement above, it appears that the Appellant contends that the proposed project is consistent with the GP/LCP, 1983 Zoning Code, and the aforementioned settlement and that the proposed project should be approved without a Variance.
Staff Response and Analysis
As demonstrated in the staff reports for the Planning Commission meetings held on February 22, 2022, and January 10, 2023, the existing development on the project site substantially exceeds the maximum allowable lot coverage specified in the GP/LCP and 1983 Zoning Code. According to the GP/LCP and 1983 Zoning Code, residential uses (including buildings, parking, landscaping, gardening, outdoor living, and other uses) shall not exceed 60% of the lot or 5,000 square feet, whichever is less. This serves as the lot coverage standard for residential uses in the OS-1 Zone. In the case of the project site, 5,000 square feet is the maximum allowable lot coverage.
Due to the previously-approved Variance, the maximum allowable lot coverage was permitted to be exceeded. The existing residential unit is 6,384 square feet, which exceeds the 2,000 square foot limit for OS-1 zoning, and staff estimates that the existing landscaping covers approximately 46,870 square feet, or nearly 10 times what would otherwise be permitted under the OS-1 zoning. However, the previously-approved Variance only permitted the project considered by the Planning Commission at that time.
New development, such as the proposed project, would require new approval(s) and compliance with regulations in place at the time the application for new approvals was 1 Full URL:
https://accesspismo.pismobeach.org/WebLink/Browse.aspx?id=18962&dbid=0&repo=Laserfiche
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deemed complete. And nothing in the settlement agreement or the subsequent open space easement provided that additional development would be permitted as a matter of right within the area not covered by the open space easement.
The denied project would cause the project site to deviate further from the purpose of the OS-1 Zone by expanding the lot coverage beyond what was permitted through the previously approved Variance, and therefore, is not consistent with the GP/LCP and 1983 Zoning Code. Furthermore, since the scope of the settlement was specific to the project at the time and the denied project would be new development beyond the scope of the settlement, the denied project is not covered by the settlement agreement. Lastly, although the denied project is well-intended and may contribute from a water resource standpoint, consistency with applicable policies and compliance with applicable regulations must be achieved for the denied project to be further considered for approval.
Approval of a Variance would be necessary to allow new development on the project site to further exceed the limitations established by the GP/LCP and 1983 Zoning Code. Since the Variance was not part of the appeal, approval of the project cannot be granted.
Environmental Determination
In accordance with the California Environmental Quality Act (CEQA), it has been determined that the project is exempt pursuant to Section 15061(b)(4) of the CEQA Guidelines regarding projects rejected or disapproved by public agencies, and a Notice of Exemption (Attachment 7) has been issued for the project.
Conclusion and Recommendation
The proposed project is not consistent with the GP/LCP, the scope of the previous litigation settlement does not cover the proposed project, and the potential environmental benefits of the proposed project alone do not justify approval of the previously denied project. Therefore, staff recommends that the City Council adopt a Resolution (Attachment 1) denying the appeal and upholding the Planning Commission decision on April 25, 2023, to deny Project No. P22-000004, a request for a Coastal Development Permit and Variance to develop a rainwater collection and retention system for an existing residence; and making a determination of exemption under the California Environmental Quality Act.
FISCAL IMPACT:
There is no direct fiscal impact as a result of staff’s recommendation.
ALTERNATIVES:
1. Do not adopt the Resolution; uphold the appeal, overturn the Planning Commission denial, and direct staff to return with a new Resolution with appropriate findings for approval of the project.
2. Provide other direction to staff.
ATTACHMENTS:
1. Resolution denying the appeal
2. 2003 Planning Commission Resolution
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3. Settlement Agreement
4. Planning Commission Resolution PC-R-2023-013
5. Minutes of the April 25, 2023, Planning Commission Meeting
6. Appeal of Planning Commission Decision Filed by Andrew Grow
7. Notice of Exemption
Prepared by: Cory Hanh, Planning Manager Meeting Date: June 20, 2023 Submitted by: Matthew Downing, Community Development Director Interim City Manager Approval:
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RESOLUTION NO. R-2023-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA DENYING THE APPEAL AND UPHOLDING THE PLANNING COMMISSION DENIAL OF PROJECT NO. P22-000004 AND MAKING A DETERMINATION OF EXEMPTION UNDER CEQA. LOCATION – 3990 SHELL BEACH ROAD. APN 010-154-037
WHEREAS, Andrew Grow submitted an application (Project No. P22-000004) for a Coastal Development Permit and Variance to develop a rainwater collection and retention system for an existing single-family residence; and
WHEREAS, the Planning Commission held duly-noticed public hearings for Project No.
P22-000004 on February 22, 2022; January 10, 2023; January 24, 2023; and April 25, 2023, at which all interested persons were given the opportunity to provide public comment; and
WHEREAS, on April 25, 2023, the Planning Commission, following consideration of public testimony, applicant testimony, and staff analysis, adopted a Resolution denying, without prejudice, Project No. P22-000004; and
WHEREAS, on May 4, 2023, Andrew Grow (Appellant) filed a timely appeal of the Planning Commission decision to deny the Coastal Development Permit request associated with Project No. P22-000004; and
WHEREAS, the City Council held a duly-noticed public hearing on June 20, 2023, at which all interested persons were given the opportunity to provide public comment; and WHEREAS, the City Council finds, after due study, deliberation, and public hearing, that the following circumstances exist:
A. FINDINGS REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
1. The project is exempt pursuant to Section 15061(b)(4) of the CEQA Guidelines regarding projects rejected or disapproved by public agencies.
B. FINDINGS FOR DENIAL OF THE COASTAL DEVELOPMENT PERMIT
1. The proposed project is inconsistent with the General Plan and Local Coastal Program (GP/LCP) because the proposed development would exceed the development limitations established by the General Plan/Local Coastal Program (GP/LCP) Policy LU-A-8.
Attachment 1
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2. The proposed project does not satisfy the applicable provisions of the Pismo Beach Municipal Code (1983 Zoning Code) because it would add additional development beyond what is allowed by Section 17.051.030.B.1. According to this section, total development within the OS-1 Zoning District is limited to the lesser of 60 percent of the lot area, or 5,000 square feet of the lot area. Based on staff’s estimate of the developed lot coverage at the current time, which is in excess of 25,000 square-feet, the proposed project would expand the lot coverage beyond that previously undertaken and beyond what is allowable under Section 17.051.030.B.1.
3. The proposed project or use will be inconsistent with the character of the immediate neighborhood or contrary to its orderly development because the requested rainwater collection and retention system would result in development that would exceed the maximum allowable development area limited by the GP/LCP and 1983 Zoning Code, otherwise applicable to neighboring properties in the same zoning district.
4. The property owner’s predecessor in interest has already received a Variance and Conditional Use Permit and constructed one residential unit on the property that exceeds the development standards identified pursuant to 1983 Zoning Code Section 17.051.030. The feasible and beneficial use of the site, which produced favorable and advantageous results, both social and economic, has already been achieved. Additional development beyond what exists at the site would constitute a grant of special privileges not enjoyed by other similar properties within the same zoning district.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby denies the appeal and upholds the Planning Commission decision on April 25, 2023, to deny Project No. P22-000004, with the above findings.
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 20th day of June 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
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760 Mattie Road, Pismo Beach, CA 93449
(805) 773-4657 I PismoBeach.org
APPEAL OF PLANNING COMMISSION DECISION
Procedural information: Appeals must be filed with the City Clerk's Office before 5:00 p.m. on the tenth (10') working day following the Planning Commission action being appealed. The fee for all appeals is $985 (City fee 5- 037), except appeals of Coastal Development Permits (CDPs) only. Late or facially incomplete appeal forms will not be accepted.
READ BEFORE FILING. The Municipal Code provides that the written appeal shall include a description of the nature and reasons for the appeal. You should provide enough detail as to the basis for your appeal for the City Council to understand the grounds for your appeal. While you will have a limited opportunity to provide oral argument on the appeal, adding additional bases or information at the appeal hearing may not provide the City Council sufficient information or time to fully consider your appeal, which may impact the City Council's decision on the appeal.
Single -sentence statements of appeal or appeals stated in generalities are therefore disfavored and may be denied by the City Council.
1. Project Information: (REQUIRED)
CITY PROJECT FILE NUMBER (e.g. P23-000I23)
P22-000004
PROJECT ADDRESS / ASSESSOR'S PARCEL NUMBER
3990 Shell Beach Road / APN 010-154-037
DATE OF PLANNING COMMISSION ACTION
April 25, 2023
TYPE OF ACTION(S) BEING APPEALED
Architectural Review Permit (ARP)
❑ Coastal Development Permit (CDP)
❑ Conditional Use Permit (CUP)
❑ Decision on Appeal of Staff Determination
❑ Environmental Determination
❑ Major Modification
❑ Tentative Tract (Subdivision) Map
❑ Tentative Parcel Map
❑ Time Extension
❑ Sign Permit Approval
❑ Variance
• Other (specify) Denial of CDP
STAFF USE ONLY
DATE RECEIVED
BY CITY CLERK'S
OFFICE City .-it Pismo Beech
City Clerk's Office
MAY 0 4 2023
Received
3IFiled within ten working days
p. Type of permit(s) being appealed is identified
y Specific basis for appeal is identified
j/Form is signed by appellant
r 1 $985 Fee paid OR II Fee waived for appeal of a CDP only o Check - Cash i Card Receipt#
2. Specific Basis for Appeal — Complete page 2 of this form, or attach a separate page. {REQUIRED)
3. Appellant Information: (REQUIRED)
PRINT NAME Andrew Grow
MAILING ADDRESS _
PHONE NUMBER �
s/ Andrew Gr
SIGNATURE OF
Pismo Beach
EMAIL ADDRESS
April 26. 2023
DATE
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Attachment 6
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CITY OF PISMO BEACH
NOTICE OF EXEMPTION
To: County Clerk-Recorder’s Office From: City of Pismo Beach County of San Luis Obispo 760 Mattie Road
1055 Monterey Street, Suite D120 Pismo Beach, CA 93449-2056 San Luis Obispo, CA 93408
Project Title / CEQA No.: P22-000004 / CEQA No. 2023-016 Project Applicant / Email / Phone: Andrew Grow / [email protected] / 805-903-2836 Project Location – Address: 3990 Shell Beach Road
Project Location – City: Pismo Beach
Description of Nature, Purpose and Beneficiaries of Project:
Name of Public Agency Taking Action on Project: City of Pismo Beach Name of Person or Agency Carrying Out Project: Andrew Grow Exempt Status (check one):
տ Ministerial (Section 21080(b)(1); 15268)
տ Declared Emergency (Section 21080(b)(3); 15269(a))
տ Emergency Project (Section 21080(b)(4); 15269(b)(c))
܆ Categorical Exemption. State type and section number:
տ Statutory Exemptions. State code number:
܈ Other. State code number: Section 15061(b)(4) of the CEQA Guidelines Reasons why project is exempt:
Lead Agency Contact Person: Matthew Downing, Community Development Director Contact: 805-773-4658
Email: [email protected]
If filed by applicant:
x Attach certified document of exemption finding.
x Has a notice of exemption been filed by the Public Agency approving the project? տ yes տ no -------------------------------------------------------------------------------------------------------------------------------------------------------- Signature: ________________________ Title: Community Development Director Date: June 20, 2023 ܈܈ Signed by Lead Agency | տ Signed by Applicant
Appeal of the Planning Commission denial of Project No. P22-000004. A request for a Coastal Development Permit and Variance to develop a rainwater collection and retention system for an existing residence.
The project is exempt pursuant to Section 15061(b)(4) of the CEQA Guidelines regarding projects rejected or disapproved by public agencies.
Attachment 7
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