Pismo Beach City Council
June 20, 2023

1 Erica Inderlied
From:Paul Beard
Sent:Friday, June 16, 2023 7:42 PM
To:Mary Ann Reiss; Ed Waage; Stacy Inman; Marcia Guthrie; Scott Newton Cc:City Council; 'Andrew Grow'; Steven Puglisi; [email protected] Subject:Item 11.B - 3990 Shell Beach Road Appeal (Grow) Attachments:Letter to City Council for 6-20-23 Hearing.pdf External Email
Dear City Council Members:

Please see attached comment letter in support of the appeal of Andrew Grow re: 3990 Shell Beach Road (rainwater collection and retention system).

Thank you,

Paul Beard II
Partner, Certified Specialist in Appellate Law*

*Certified by the State Bar of California
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June 16, 2023

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City Council
City of Pismo Beach
760 Mattie Rd.

Pismo Beach, CA 93449
Email: [email protected].

Re: Item 11.B—3990 Shell Beach Rd. (Andrew Grow)

Dear City Council Members,

We represent the applicant and appellant, Andrew Grow, who seeks a Coastal Development Permit (“CDP”) to install an environmentally-friendly, rainwater collection and retention system (“Project”) where he resides at 3990 Shell Beach Road (“Property”). We urge the Council to uphold the appeal from the Planning Commission’s denial and approve the Project.

After numerous hearings before the Planning Commission, staff’s consistent opposition to the Project eventually eroded the Commissioners’ initial support for it. Indeed, even after the Commission specifically requested that staff return with a resolution of approval, staff returned only to oppose the Project and advocate for its denial. In the end, the Commission relented and denied the Project based on certain misrepresentations and omissions about the unique history of the Property. That history includes a 2016 settlement of litigation against the City (won by the prior owner, Mike Spangler) that acknowledges a fully “developed area” where this Project is proposed.

Neither of the staff’s two objections to the Project has merit:

1. The Project does not “add” to the Property’s existing lot coverage already permitted by prior actions of the City, including the 2016 Court-approved settlement. The Project is proposed to be located in an area that is already fully developed.

2. At 12 feet, the Project is well below the LCP’s height limitation of 15 feet. And it does not “obscure” any views from Highway 101.

The City promotes and even subsidizes rainwater collection and retention. This Project does just that, consistent with all applicable laws, prior City permit actions, and the Court-approved settlement. The City Council should approve the Project.

Paul Beard II
Partner
[email protected]
Direct: 818-216-3988
4470 W. Sunset Blvd., Suite 93165
Los Angeles, CA 90027
www.FisherBroyles.com

City Council of the City of Pismo Beach
June 16, 2023

The Project Conforms to the LCP

In recommending denial of this Project, staff argues that it would exceed the development limitations established by the General Plan/Local Coastal Program (GP/LCP) Policy LU-A-8, which provides that the amount of site area that may be developed with improvements shall not exceed 5,000 sq. ft. or 60% of gross site area which is lesser. In the same vein, the City cites section

17.051.030.B.1 of the Municipal Code (1983 Zoning Code), which states that “[n]o more than sixty percent, or five thousand s.f. of the lot or parcel, whichever is the least, shall be utilized for residential uses including buildings, parking, landscaping, gardening, outdoor living and other uses.”

The house and related improvements that are currently at the site have been either expressly permitted or otherwise regularized through City action. First, a 2003 CDP and variance authorized the current house, driveway, and other improvements at the Property. A variance was deemed appropriate given the large size of the parcel (2.5 acres). The variance authorized exceedances of the residential-footprint and residential-height limitations.1 Second, a Court-approved settlement agreement between the prior owner (Mr. Spangler) and the City in 2016 acknowledged the current developed lot coverage (house, softscape, hardscape, etc.) and barred the City from ever requiring its removal.

As for the 2003 CDP, that permit was the product of a long and unique history at the Property, which is anomalously zoned as “OS-1”—i.e., as open space, but with residential development allowed. That complex history is detailed in the attached Appendix 1 and is very important to understand as background to this Project. Ultimately, as one Planning Commissioner suggested at the last hearing, there appears to be no good reason why the Property is zoned as OS- 1—especially given its size. For that reason, Mr. Grow intends to apply for a rezoning of his Property that better reflects the reality of residential development on the ground. In any event, the fact remains that the City permitted the present improvements at the Property; there is no unlawful improvements or development at the Property.

As for the Court-approved settlement, an “OPEN SPACE EASEMENT AGREEMENT” was recorded over “any portion of [the] property not occupied by a structure or driveway or other developed area, as shown on the site plan attached as Exhibit A.” (See Settlement agreement,

1 In the 2003 CDP, the softscape and hardscape were not counted towards the 5000 square-foot lot-coverage calculation. The 2003 project—the house, driveway, plantings, etc.—was deemed consistent with the 5000 square-foot lot-coverage limitation. See, e.g., Appendix 1 – Page 5 (quoting 2003 CDP Finding 12), Page 6 (2003 CDP Finding 3).

City Council of the City of Pismo Beach
June 16, 2023

including Open Space Easement, attached hereto as Appendix 2). Exhibit A shows the boundaries of the easement, with all areas inside the white line being deemed as lawful development:

Importantly, the Court approved the settlement, such that its violation by the City can be enforced. Significantly, the settlement states:

“[The owner]shall not be required to make any alterations to his property, including his residence, landscaping or hardscaping, prior to, as a condition of, or any time after issuance of the Certificate of Occupancy.”

City Council of the City of Pismo Beach
June 16, 2023

Again, all development within the developed area—i.e., inside the white boundary—is lawful. To put it differently, the area inside the white boundary reflects full lot coverage.

The question before the Council is: Does the Project expand the existing lot coverage authorized and regularized long ago through the 2003 CDP and the 2016 settlement? The answer is “no.”

The Project, consisting of tanks and a connected sump, occur entirely within the already- “developed area” of the Property (i.e., the inside of the easement area in the open-space easement’s Exhibit A). In other words, the Project does not add to existing lot coverage. The image below is from the site plan, showing the entire Project within the developed lot coverage at the site. The developed lot coverage is shown inside the yellow line, which corresponds to the white boundary of the open-space easement (Exhibit A to the easement). The tanks would be placed on an already- developed gravel driveway area (designated by the number “5”) and the sump would be placed adjacent to the existing house, on existing landscape (designated by the number “6”).

Contrary to staff’s argument, the Project does not “add” development to an undeveloped “open space” area. Rather, the Project simply substitutes one kind of development (tanks/sump) for another (gravel and plantings). The lot coverage would not be expanded. Further, the irrigation system is well within the broad “residential uses” listed in section 17.051.030 for OS-1, which include “installation … of permanent irrigation system[s].” Municipal Code § 17.006.0615 (definition of “landscaping,” which is a “residential use”).

The Project Does Not “Obscure” Views from Highway 101

The staff report alludes to the City’s policy of ensuring no obstruction of views from Highway 101. The staff does not outright claim that the Project conflicts with that policy, but to be absolutely clear, it does not. The Project is “tucked away” in the corner of the Property with no

City Council of the City of Pismo Beach
June 16, 2023

discernible impact to the oceanward views of drivers and passengers traveling along the south- or northbound lanes of the freeway.

That is because Mr. Grow has done everything asked of him by staff and the Commission to ensure the Project has no impacts to views from the highway. While not legally required, Mr.

Grow is happy to address any additional viewshed concerns that might arise at the upcoming hearing, including by adding plantings to help screen the tanks.

Mr. Grow presented photographic evidence of the Project’s non-impacts to views from Highway 101 to the Planning Commission, and they are in the record. But Mr. Grow highlights the following two, which clearly establish no “obstruction” to views:

View of the Project (below the railing) from 101SB Lane 3

City Council of the City of Pismo Beach
June 16, 2023

View of the Project (below the railing) from 101NB Lane 1

Conclusion

The Planning Commission was led to ignore the unique history of this site, including the existence of the 2016 settlement regularizing all development inside the white boundary. The Project does not expand development; it merely replaces one kind of development for another. Mr.

Grow, who acquired the Property with an investment-backed expectation that all of the development on the site was fully authorized and that the 2016 settlement would not be disregarded, has worked tirelessly to present a project that is consistent with the legal history of this site and even promotes the City’s own program to increase the use of rainwater collection and

City Council of the City of Pismo Beach
June 16, 2023

retention systems. His efforts before the Planning Commission may have been in vain, but this Council can correct course and ensure that Mr. Grow’s development and use rights—as reflected in prior City actions, including the settlement—are protected.

The Project conforms to the 2003 CDP/variance and the 2016 settlement. And it is otherwise consistent with the LCP. The Council should uphold the appeal and approve the Project.

Very truly yours,

Paul J. Beard II
Counsel for Andrew Grow

3990 Shell Beach Road

The subject property owned by Andrew Grow, at 3990 Shell Beach Road also referenced as Lot 50 or the 2.5-acre site in the public record, has a long and storied zoning history. The following provides an overview of the 40+ year history and includes copies of the important documents

In 1978 Harvey Pharmacies was granted a Coastal Development Permit (CDP-A-266-79) to build 47 houses on what is known as the “Palisades”. This permit had Special Condition 1 that required the recordation of an offer-to dedicate over the 2.5-acre site (lot 50) to the San Luis Obispo County Housing Authority (or similar public or private non-profit housing development organization) for the purposes of providing low and moderate income housing in the City of Pismo Beach coastal zone. The Offer to Dedicate (OTD) was recorded on May 13, 1980, by the then owner Santa Barbara Savings & Loan. The OTD remained on the property until an amendment to CDP-A266-79 was submitted by Stanley Bell. The immaterial amendment was approved by the California Coastal Commission in 2008 which removed the condition requiring the offer to dedicate allowing the offer to dedicate to be removed from title (CDP-266-79-A1).

In 1978 the Pismo Beach City Council adopts Resolution No. 1428, which adds an interim Scenic Highway element to the General Plan. At this point in time, 2 years before the approval of the subdivision known as Sunset Palisades Unit 1, the City adopts an interim Scenic Highway element. This demonstrates that the property was not identified as having any value for habitat or needing other open space protection other than protections for the scenic values. The interim ordinance wording is provided below:

Sunset Palisades
Findings:

A. While the east and south borders of the area are urbanized, there remains much open land with scenic value.

B. A green belt separating Sunset Palisades and Spyglass Point is desirable to give contrast and distinction to these communities.

C. New development should not block the view from the highway toward the ocean or views deemed important by local residents.

Proposals: A. The central portion and shoreline should be zoned scenic and sensitive. B. Two neighborhood parks should be included in the ultimate development with a linking pedestrian/bikeway system. C. For shoreline setbacks and public access proposals, see "Shoreline Area", P.V-26.

Appendix 1 - Page 01

2 D. Development should be reviewed to ensure that heights do not obscure the shoreline (though one high building with surrounding open space maybe better than a series of continuous moderately high buildings.

E. Trees should be planted to enhance open space character by hiding buildings from the highway view. (See proposals under #6 below). F. Development and pedestrian links should be arranged to have scenic open space corridors to the sea where possible.

The interim ordinance identified the area including the subject property as scenically important and required only that the height of development be limited to ensure that it did not obscure the view from Highway 101 to the shoreline.

In 1980 Harvey Pharmacies sells 50 percent ownership to Stanley Bell with 50 percent ownership to Santa Barbara Savings and Loan.

Subsequent to these approvals and in spite of the recorded offer to dedicate the property for housing, in approximately 1983 the City adopted a General Plan amendment and rezone (City initiated) amending the general plan/zoning of the subject property to Open Space so as to prohibit development on the 2.5-acre site. This rezone was part of a larger project (Ordinance No. 320/1983) and was not specific to subject site.

The 1983 general plan amendment and rezone of the subject property to Open Space initiated the problems associated with development on 3990 Shell Beach Road resulting in numerous attempts to correct the resulting negative impacts including general plan amendments, variances, lawsuits and settlements.

In 1987, the supreme court handed down a decision known as First Lutheran Church decision.

This landmark decision certainly established that Mr. Bell had constitutional rights and was instrumental in the subsequent changes to the Open Space and the creation of the OS-1 designation which provided for some economic use of privately held OS property and avoided an inverse condemnation of the property.

In 1987, a general plan amendment/rezone application was submitted by Mr. Bell (property owner) to amend the general plan from Open Space to Low Density residential. In 1989 the City Council heard the appeal of the Planning Commission’s denial of the request. The Planning Commission denied the application (4-GP-87), and the City Council upheld that denial on appeal. While the denial was upheld, the City Council directed the current open space subcommittee of Councilmembers Baker and Foster to review the density and open space situation on this property with staff providing options to the Council.

In 1990 Santa Barbara Savings and Loan quitclaims their half interest of the property to Mr.

Stanley Bell.

1990 Mr. Bell filed the first of two lawsuits against the City of Pismo Beach, alleging that the 1983 zone change constituted a “taking” of his property by denying him all reasonable economic use of the property (CC agenda item 6.E).

Appendix 1 - Page 02

3 The 1991 the open Space Subcommittee submitted a report to the Planning Commission per the direction given in 1989. This report addresses inverse condemnation and the transfer of development rights. The committee (October 19, 1989, memo) met with staff and discussed the following issues: Policies regarding open space, density transfers, economic utilization of property, inverse condemnation and implications of The First English Evangelical and Nolan judicial decisions. Their recommendation was for Planning Commission to review the study and make a recommendation to council, a zoning amendment providing expanded opportunities to both the property owner and community.

In 1991 a resolution (R-91-04) adopted open space changes to the General Plan and in 1991 an ordinance (91-18) and was approved specifically to address the issues of open space, transfer of development rights and their relationship to property designated as OS-1 in the zoning ordinance.

These amendments specifically addressed the three OS-1 parcels in the Sunset Palisades Planning Area between Shell Beach Road and the highway under private ownership and zoned open space, which—again—includes the subject property. The three affected parcels are approximately 6,150 square feet, 11,000 square feet, and 2.5 acres and are known as 3890, 3990 and 4000 Shell Beach Road. These amendments addressed the taking issue created when the privately held properties had their general plan designation and zoning changed from residential to open space and the subsequent court cases (First Lutheran Church) establishing that such actions are inverse condemnation. So, there was an acknowledgement that the change in General Plan designation and a rezoning to Open Space negatively affected these parcels and the solution at that time was for the City to initiate an amendment to general Plan policy LU-A-8 to provide for development on these parcels. At the subsequent public hearing on these changes, Mr. Bell (then owner of 3990 Shell Beach Road/lot 50) stated that the limits provided for within General Plan policy LU-A-8 do not adequately address the size of (2.5 acres) the parcel and therefore do not provide for adequately sized development. LU-A-8 was modified to provide for the residential development within the OS-1 however the development was limited.

In 2002 Stanley Bell sells the subject property to Mike Spangler.

In 2003 a coastal development permit, conditional use permit and variance was submitted proposing residential development for the subject site. A comprehensive report was presented to the Planning Commission including findings for the CUP and variances. The environmental review for the project resulted in a Mitigated Negative Declaration being adopted. This environmental document clearly indicates that the project as proposed is consistent with land use policies and does not create any impacts to the aesthetics of the area (for example, obstructions to the ocean views). Additionally, the report and subsequent findings approved by the Planning Commission address the size of the property and provide for relief to the standards. The following findings used to base the CUP and Coastal Development Permit are presented below.

A. FINDINGS REQUlRED BY THE CALIFORNIA

ENVIRONMENTAL QUALITY ACT (CEQA)

1. The project consists of construction of one single-family residence, located within the urban areas of the City, and on a site which allows for construction of one residence.

Appendix 1 - Page 03

4 2. There are no site constraints that have otherwise not been addressed within the Initial Study/Mitigated Negative Declaration. The project could have a significant effect on the environment; however, there will not be any significant effect in this case because mitigation measures described in the Mitigated Negative Declaration have been added to reduce any impact to less than significant.

3. That the Mitigation and Monitoring program attached to the Mitigated Negative Declaration, has been reviewed and determined to be adequate in mitigating or avoiding potentially significant environmental effects.

4. The public hearing and issuance of the Mitigated Negative Declaration for this project has been adequately noticed and advertised, to the provisions of Sections 15072, 15073, and 15074 of the CEQA guidelines and California Government Code Sections 65090, 65091, and 65095.

B. FINDINGS FOR APPROVAL OF THE CONDITIONAL USE PERMIT,

AND COASTAL DEVELOPMENT PERMIT

1. The construction of a new 6,384 s.f. single family home and related improvements are in conformity with the public access and public recreation policies of Chapter 3 (commencing with Section 30220) of the California Coastal Act of 1976.

2. The construction of a new 6,384 s.f. single family home and related improvements are appropriate in size so as to be compatible with the adjacent structures.

3. The architectural and general appearance of the construction of a new 6,384 s.f. single family home and related improvements is in keeping with the character of the neighborhood.

4. The proposed construction of a new 6,385 s.f. single family home and related improvements are compatible with the visual quality and character of the surrounding area and are compatible with the immediate neighborhood.

5. The proposed construction of a new 6,384 s.f. single family home and related improvements are consistent with the General Plan, Local Coastal Plan and General Plan Land Use Plan category of Open Space where construction of a single residence is permitted.

6. The proposed construction of a new 6,384 s.f. single family home and related improvements are in conformance with the requirements of the Zoning Code with the exception of the items addressed under the variance findings.

Appendix 1 - Page 04

5 7. The proposed construction of a new 6,384 s.f. single family home and related improvements are compatible with the nearby existing uses and is not detrimental to the health, safety, morals, comfort and general welfare of persons living or working in the surrounding area of the proposed project.

8. The 108,904 s.f. site is physically suitable for construction of a new 6,384 s.f. single family home and related improvements to provide support for a single family residence.

9. The proposed construction of a new 6,384 s.f. single family home and related improvements is in keeping with the character of the surrounding area composed of single family residences, will not block views from Highway 101 and is consistent with the zoning of the project site which allows construction of one single family residence.

10. The proposed construction of a new 6,384 s.f. single family home and related improvements will not be detrimental to the orderly development of improvements in the surrounding area, and will not be detrimental to the orderly and harmonious development of the City.

11. The proposed construction of a new 6,384 s.f. single family home and related improvements will not impair the desirability of investment or occupation in the neighborhood.

12. The project as conditioned complies with General Plan Policy LU-A-8 and Zoning Code section 17.051.030, which limits the total disturbed area of the site to not greater than 5,000 square feet. The existing plantings are not considered new landscaping and therefore do not count against the 5,000 square foot limitation. The existing landscaping is determined to be part of the op en space area. Language in bold added by Planning Commission at meeting of October 14, 2003.

FINDINGS FOR APPROVAL OF A VARIANCE INCREASING THE PERMITTED RESIDENTIAL UNIT SQUARE FOOTAGE FROM 2,000 SQUARE FEET TO 6,384 SQUARE FEET

1. Because of special circumstances, the strict application of the zoning ordinance deprives the owner of the ability to develop the property in the manner enjoyed by other property within the vicinity. The property is unique, in that it is separated from the rest of the Sunset Palisades Planning area by Shell Beach Road and that the relative allowable size of the residence, when compared to the lot size of 2.5 acres, is very small.

The special circumstance in this case, is the large lot size, approximately 2.5 acres, compared to the small floor area permitted. The strict application of the zoning ordinance, in limiting the residential square footage to 2,000 square feet, does nothing to further the goals of the open space area. The intent of the open space zone is met by preserving views from 101 and by focusing the development to a single localized area and thereby preserving to the greatest extent possible, the open nature of the site. The applicant is potentially being deprived of similar development potential afforded to lots located to the south of the site in the South Appendix 1 - Page 05

6 Palisades Planning area. Development of lots between Shell Beach Road and Highway 101 in the South Palisades is subject to the same developable footprint limitation of 5,000 square feet or 60% of the lot size; however, there is no limitation on unit size. In fact residential units in this area can actually extend up into the view corridor of Highway 101.

There are however three other residences, located on lots between Shell Beach Road and Highway 101, in the South Palisades planning area on property designated Open Space in the General Plan. Each of these homes is in excess of 2,500 square feet, as are many of the homes in the adjacent subdivisions within the Sunset Palisades. Additionally, there are two recently approved residences located directly to the north of the site, which have square footages in the 3,000 to 4,000 square foot range.

If the residence were to be limited to only 2,000 square feet, it would be far smaller than the majority of the surrounding residences, as well as the existing and recently approved homes located on similar Open Space property in both the Sunset and South Palisades. The enforcement of the 2,000 square foot limitation would appear to be unnecessarily limiting, given that the size of residence has nothing to do with the protection of views from Highway 101. Therefore, unless the variance request is granted, the owner will not be afforded the same building potential as other lots of much smaller size within the adjacent neighborhood.

2. Allowing a residence larger than 2,000 square feet would not grant a special privilege and will not be detrimental to the character of the surrounding neighborhood. The variance will allow the owner to build a residence of similar size enjoyed by the neighboring properties.

The increased square footage will not affect the views from Highway 101, nor will it significantly degrade the open space nature of the site. Thus, the residence will appear to be similar to the neighboring homes in both the Sunset Palisades Planning area and the South Palisades Planning area, while at the same time preserving views and the open space nature of the site.

3. The proposed project is consistent with the General Plan policies for protecting views out to the ocean from Highway 101 as well as with policy LU-A-8 which serves to limit total development improvements on properties designated Open Space, to 5,000 sq.ft. or 60% of gross site area, whichever is lesser.

4. The variance does not authorize a use or activity that is not otherwise permitted by the zone, because the zoning ordinance permits construction of one single-family residence.

The findings in resolution R-2003-0027 establish that the development proposed was found to be consistent with the General Plan, Local Coastal Plan and General Plan Land Use Plan category of Open space, LU-A-8 and in conformance with the requirements of the Zoning Code with the exception of the items addressed under the variance findings. Additionally, the Planning Commission found that the project as conditioned complies with General Plan Policy LU-A-8 and Zoning Code section 17.051.030, which limits the total disturbed area of the site to not greater than 5,000 square feet. The Planning Commission eliminated two conditions of approval and added the following statement: The existing plantings are not considered new landscaping and therefore do not count against the 5,000 Appendix 1 - Page 06

7 square foot limitation. The existing landscaping is determined to be part of the open space area. Language in bold added by Planning Commission at meeting of October 14, 2003. By removing conditions 6 and 9 the Planning Commission eliminated the need for the applicant to modify the plans to be under the 5,000 square foot limit as they were able to make the finding that the project as proposed and conditioned met the 5,000 limit without any modification (see below conditions of approval for permit 03-0027)

It is clear from the record that the house, garage, and associated improvements were evaluated and specifically identified as being consistent with the General Plan, the Zoning Ordinance and therefore approved with a valid permit and subsequent building permit. Under 17.121 permits are subject to expiration only before they are inaugurated, the permits in question have been inaugurated and have never been subject to revocation and therefore remain in force and legal.

In 2004 a General Plan amendment and Rezone application were submitted by Mr. Spangler to the City for 3990, 3998 and 4000 Shell Beach Road. These are the three parcels privately held but zoned for open space. The City of Pismo Beach records indicate that all three properties either had homes on them or were under residential construction (June 5, 2007). The project was heard by the Planning Commission on January 25, 2005 and then at the City Council on September 6, 2005, September 20, 2005, April 17, 2007 and June 5, 2007. In the analysis provided by staff Exhibit 2 states “It would appear that the main reason this portion of the City was designated as Open Space, was not to preserve some extraordinary piece of property or resource, such as an oak woodland or special habitat area, but rather to protect the view corridor from Highway 101 out to the ocean. The proposed text amendments would appear to serve the function of protecting these views, thereby negating the benefit or necessity of maintaining the area under an Open Space land use designation. In fact, after the completion of the three homes that are currently under construction, the area will no longer appear as open space. Despite a favorable staff report the project was denied and the accompanying City Attorney memo stated that the still existing offer to dedicate would be problematic if the project were to be rezoned for residential.

Ongoing conversations between Spangler and the City via the City Attorney indicate that the City requested that Spangler get a waiver or withdrawal executed by the Coastal Commission of the requirement that the property be subject to the offer to dedicate for low income housing. The attorney’s letter indicated that after that action was complete, the City would be in an adequately informed position to advise the City Council on the application for an amendment and zone change.

In 2008, the California Coastal Commission approved an immaterial CDP amendment. The basis of this actions was based on the following:

Per the terms of the Commission’s original approval, the required OTD was recorded in 1980. Since that time, however, several events have transpired that essentially nullify the OTD’s utility with respect to its intended effect. First, despite diligent attempts on behalf of the various permittees since 1980, suitable accepting entities have not been found; in fact, both the San Luis Obispo County Housing Authority and the City of Pismo Beach have taken formal action declining to accept the OTO.

Appendix 1 - Page 07

8 Second, the 2.5 acre site was subsequently designated for Open Space – Natural Resource Protection (OS-1) in the LCP by the Commission in 1993 (LCP amendment 1-92). The OS-I designation is intended for protection of natural resource and open space values, and is not intended for residential development past one single-family residence per legal lot. Third, in 2003, the City approved a coastal development permit for the construction of a single-family residence on the 2.5-acre lot. This approval also required that the remainder of the site be placed under a permanent open space easement, and included a $22,826 fee (to the City’s Affordable Housing In-Lieu Fee Account) to offset affordable housing issues and concerns. The single-family residence has been constructed, the open space easement recorded, and the fee collected. Thus, there is no additional residential development potential for the 2.5 acre site under the LCP, and it is easement protected against any such development, including because of its location in the foreground of seaward views from Highway 101. Therefore, the elimination of the OTD requirement would be appropriate, it would “clean-up” the regulatory requirements applicable to the site in a manner reflective of the current regulatory and LCP planning realities applicable here, and the proposed amendment does not have the potential for adverse impacts on coastal resources.

The record is unclear as to why the City never moved forward with zoning changes once the offer for dedication was removed from the property’s title.

In 2016 the City and the then property owner (Spangler) were involved in litigation regarding the ongoing issues with the subject parcel and impacts that zoning the property open space created.

The City settled the case, with a monetary payment to Mr. Spangler and a regularization of all development outside of a recorded easement (see below). The subsequent recorded open space easement states as follows:

Michael Spangler, being the legal owner of real property located at 3990 Shell Beach Road, Shell Beach, California, APN: 0 l 0-154-037, hereby records this open space easement over any portion of said property not occupied by a structure or driveway or other developed area, as shown on the site plan attached as Exhibit A. This easement cannot be altered without approval of the City of Pismo Beach. The legal
description of the real property located at 3990 Shell Beach Road, Shell Beach, California is attached hereto as Exhibit B and incorporated by reference.

In 2017 the Spangler family sells the subject property to Andrew Grow

The new property owner, Mr. Grow, has come before the Planning Commission and now before you, the City Council, to propose a rainwater collection and retention system. The project has resulted in new interpretations of the limits of development and open space. The findings made by the Planning Commission for denial are contained in Resolution PC-R-2023-013 and as Appendix 1 - Page 08

9 follows:

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.

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 staffs 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 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 is existing at the site would constitute a grant of special privileges not enjoyed by other similar properties within the same zoning district.

The findings stated above are an attempt to characterize the developed lot coverage (footprint) differently than it has been defined in the original approvals and the settlement agreement (see open space easement language and the settlement agreement below). The polygon that defines the open space easement in the recorded easement document defines and delineates the two areas, one being the protected open space and the other the area being that which was previously developed. The easement was a product of the settlement between the two parties (Spangler and the City of Pismo Beach). The current rainwater collection project was designed to comply with these established boundaries and submitted to the City. It does not propose any development within the open space area and was specifically proposed in an area already defined as “developed”, in other words not adding to the square footage of previously regularized development established by the settlement agreement and subsequent recorded open space easement.

Appendix 1 - Page 09

10 The project was submitted to the City on May 5, 2021, via an email to the Community Development Director. The project has been in process for over two years. While the amount of time may have been lengthy due to the impacts of Covid-19, the constant changes in direction has been frustrating to Mr. Grow. In an email from the former Planning Manager, she outlines the basic requirements for the development to be compliant. She stated that all development, including the extent of grading for utilities, sump pump, and the tanks must occur within the building envelope as recorded and described in Exhibit A within the Open Space Easement Agreement. While that is exactly how the project was designed and submitted, it became apparent that staff had a different interpretation as to the exact development rights afforded to Mr. Grow via the original approvals (CDP, CUP, Variances), the settlement and subsequent recordation of the open space easement defining the developed area. This new interpretation evolved over time. In email from staff dated May 24, 2021, staff agreed with the applicant’s representative that resolution 2003-0027 did substantiate that the landscaping was not to be part of the 5,000 square foot development limit. It was Mr. Grow’s understanding that without submitting for a variance to the development limits the rainwater collection project would not move forward to a hearing, so a variance was submitted as directed by staff. It should be noted that a previous approval to construct a gate across the existing driveway was approved (permit #B20-000384), built and received a final on the permit in 2021 without issue.

The rainwater collection project’s processing has involved numerous revisions, a new archeologist report, arborist report, a new survey, incorporation of numerous changes based on feedback from (3) PC hearings as well as discussions concerning the proposed conditions of approval. Mr. Grow disagrees with the conditions of approval requiring removal of the shipping containers & requiring prior permission before making ANY changes to landscaping in the future. The shipping containers were allowed under the settlement agreement and should be allowed to remain. The condition that required review and approval by the Community Development Director to ANY landscape changes was challenged as it would unfairly burden a homeowner doing routine landscaping maintenance. During a Planning Commission meeting regarding the project the PC directed staff to work with applicant to make the project approvable and resolve minor issues. So, it appeared that there were only minor issues and the project was on a path to approval and there was not an issue of incompatibility as it relates to the General Plan and/or zoning regulations. In fact, on January 24, 2023, the project was on the consent calendar for approval, however it was pulled from the consent calendar for discussion at the applicant’s request. Discussions centered on the applicant providing additional information regarding view impacts (if any) and the conditions of approval. The PC wanted to know if the water tanks could be placed below ground and if the water tanks were visible for Highway 101.

Mr. Grow placed a typical water tank onsite and photographed it from various vantage points to demonstrate to the Planning Commission that the tanks were not visible from Highway 101, Shell Beach Road, or the Palisades neighborhood west of the subject property. A previously provided archeology report informed staff that placing the tanks below ground was not advisable.

Regardless of Mr. Grow’s efforts to modify the project to waylay the Planning Commissioner’s concern over visibility, the project was denied based on its supposed increase to the development footprint as defined by current staff. The applicant still maintains that the project is consistent with the Coastal Development Permit, CUP, variances issued in 2003, the open space easement agreement and the settlement between the City of Pismo Beach and Mike Spangler and does not require an additional variance for the City Council to grant approval.

Appendix 1 - Page 10

11 The historic record for the subject parcel shows the goal was to protect views, not to restrict development or to protect open space resources such as habitat. The City’s Height limitation regulations continue to protect the visual resources. The OS-1 zoning does not further protect this resource, but it does restrict residential development. Past staff, Planning Commissions and City Councils have understood that modifications were needed to the OS-1 limits to provide for reasonable development on 3990 Shell Beach Road due to its size at 2.5 acres and that is why the existing CDP, CUP, variances, and the settlement agreement with the open space easement were approved. Since the approval of the subdivision which created Lot 50 to date there have been numerous issues and attempts at solutions to create a General Plan Designation and Zoning that serves the parcel and the protection of visual resources. Most of them have created additional problems for both the property owner and the City. Mr. Grow purchased this property with the understanding that the CUP, Coastal Development Permit, Variances and settlements had resolved all of the outstanding issues with the subject property. He believed that the Exhibit A recorded as part of the open space easement clearly identified where he could make improvements to his residential development such as the rainwater collection system. Imagine his surprise when the Community Development Director stated to the Planning Commission that it was always the intent of the City of Pismo Beach that existing development on 3990 Shell Beach Road would eventually disappear through attrition and that it would return to natural state.

The characterization by Planning staff that the property is not consistent with the General Plan, Zoning and Coastal Development Permit and therefore needs to be stagnant until the improvements have outlived their useful life and the development footprint is consistent with the 5,000 square foot limit is not documented in the public record. The house, garage and associated improvements were all approved in 2003 with the appropriate findings made by the Planning Commission and those approvals remain valid. There is nothing in the record that would inform a buyer that in the future there would be new interpretations which would prohibit additional improvements to the property until the current improvements are removed down to the limit stated in LU-A-8. This is in direct conflict with the 2003 approvals and the subsequent settlement between the City of Pismo Beach and the previous property owner. A property owner seeking to purchase a property and conducting due diligence would not be privy to future interpretations and could only rely on the public records including the 2003 approvals in which findings were made that the proposed development and subsequently built development is consistent with the General Plan, General Plan policy LU-A-8 and the zoning and the subsequent settlement agreement and associated recorded open space easement documenting the developed area. There was never an indication in the historic record that the City’s plans were to stop any further improvements within the developed area and thereby limit the property rights (development rights) of Mr. Grow.

It has been 40 some years of ongoing issues with subject parcel, we would ask that the City Council look closely at the record and see that the OS-1 designation does not work for this privately held property. Additionally, it does not further the City’s goals of protecting ocean views which are adequately addressed under the height limitation overlay zone. Over the years there have been modifications to LU-A-8 and variances granted to make residential development work on the site. The record shows this situation of privately held OS-1 property is limited to three parcels and it also shows (variance findings) that the City identified the subject parcel as needing further relief from the strict interpretation of the rules due to its unique size. We believe Appendix 1 - Page 11

12 that the City Council can understand that new the interpretation of no development or replacement development until existing development is removed down to the 5,000 square foot development footprint limit is a significant burden to the current owner.

It should be noted that during the project’s last public hearing at the Planning Commission, one commissioner asked why the subject site is not just rezoned to clear up the issues created by the OS-1 zoning. Additionally, the issue was again brought up at the joint City Council/Planning Commission General Plan update meeting. It would seem that newcomers to the saga of 3990 Shell Beach Road see the benefit of a General Plan amendment/rezone.

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EXHIBIT 4A

CITY OF PISMO BEACH

CONDITIONS
PLANNING COMMISSION MEETING OF OCTOBER 14, 2003
PERMIT NO. 03-0027: CUP, CDP, ARP and Variance Request
LOCATION: 3990 Shell Beach Road, APN:010-154-037
The conditions set forth in this permit affect the title and possession of the real property which is the subject of this permit and shall run with the real property or any portion thereof. All the terms, covenants, conditions, and restrictions herein imposed shall be binding upon and inure to the benefit of the owner (applicant, developer), his or her heirs, administrators, executors, successors and assigns.

Upon any sale, division or lease of real property, all the conditions of this permit shall apply separately to each portion of the real property and the owner (applicant, developer) and/or possessor of any such portion shall succeed to and be bound by the obligations imposed on owner (applicant, developer) by this permit.

AUTHORIZATION: Subject to the conditions stated below, approval of Permit 03-0027 grants planning permits to construct a new 6,384-square foot single family residence, including garage, as shown on the approved plans with City of Pismo Beach stamp of October 14, 2003. Approval is granted only for the construction and use as herein stated; any proposed changes shall require approval of amendments to these permits by the City of Pismo Beach.

Standard conditions, policies and selected code requirements applicable to a single-family home, as adopted by the Planning Commission on August 13, 2002, are by this reference included as conditions of this permit. Such standard conditions will be attached to this permit when signed by the applicant. Special project conditions are listed on Exhibit A of this permit. The applicant agrees to comply with all City standard conditions and conditions specific to the project.

EFFECTIVE DATE: This permit shall become effective upon the passage of 10 days following the Planning Commission approval, provided that an appeal has not been filed to the City Council within those 10 working days. The filing of an appeal shall stay the effective date until an action is taken on the appeal.

EXPIRATION DATE: The applicant is granted two years for inauguration (i.e. building permits issued and construction begun) of this permit. The permits will expire on October 14, 2005 unless inaugurated prior to that date. Time extensions are permitted pursuant to Zoning Code Section

17.121.160 (2).

The property owner and the applicant (if different) shall sign these Conditions of Approval within ten 10) working days of receipt; the permit is not valid until signed by the property owner and applicant.

COMPLIANCE AGREEMENT: I have read and understood, and I will comply with all applicable requirements of any law or agency of the State, City of Pismo Beach and any other governmental entity at the time of construction. The duty of inquiry as to such requirements shall be my responsibility. I agree to defend, indemnify, and hold harmless the City, its agents, officers, and employees, from any Appendix 1 - Page 43

claim, action, or proceeding against the City as a result of the action or inaction by the City, or from any claim to attack, set aside, void, or annul this approval by the City of the project; or my failure to comply with conditions of approval. This agreement shall be binding on all successors and assigns.

I HAVE READ AND UNDERSTOOD, AND I WILL COMPLY

WITH ALL ATTACHED STATED CONDITIONS OF THIS PERMIT
Approved by the Planning Commission on March 11, 2003
Applicant Date
Property Owner Date

CONDITIONS, POLICIES, SELECTED CODE REQUIREMENTS, AND MITIGATION MEASURES FOR PROJECT No. 03-0027; 3990 Shell Beach Road, APN: 010-154-037 Conditions as indicated below have been deemed to be of a substantive nature on the basis of the Planning Commission’s decision. These conditions cannot be altered without Planning Commission approval.

STANDARD CITY CONDITIONS:

Project shall comply with all standard conditions and selected code requirements on file at the Community Development Department, Planning Division at 760 Mattie Road.

CONDITIONS, POLICIES AND SELECTED CODE REQUIREMENTS
Conditions as indicated below have been deemed to be of a substantive nature on the basis of the Planning Commission's decision. These conditions cannot be altered without Planning Commission approval.

A. SPECIAL CONDITIONS
TO BE MET PRIOR TO ISSUANCE OF A BUILDING PERMIT:

BUILDING DIVISION:

1. BUILDING PERMIT APPLICATION. To apply for building permits submit five (5) sets of construction plans ALONG WITH FIVE (5) COPIES OF THE CONDITIONS OF APPROVAL NOTING HOW EACH CONDITION HAS BEEN SATISFIED to the Building Division.

Appendix 1 - Page 44

PLANNING DIVISION

2. COMPLIANCE WITH PLANNING COMMISSION APPROVAL. Prior to the issuance of a building permit, the Project Planner shall confirm that the construction plot plan and building elevations are in compliance with the Planning Commission's approval and conditions of approval. Project shall comply with the standards noted in the table below:

Item Proposed
Lot area 2.5 acres or 108,904 sq. ft. or 102,641 sq. ft after dedication.

Max bldg height
25’ at structures highest point. High point of
structure not exceed the 153.75 foot elevation.

Max lot coverage Proposed 4,826 square feet
Building Floor Area 6,384 sq. ft.

Max building area Ratio 6% after dedication
Planting Area Ratio
Planting area ?
Minimum front yard setback 40’ after dedication
Minimum side yard setback, interior R= ~ 580’
L = ~ 280’
Minimum rear yard setback 10'
Minimum parking spaces 3,446 square foot
Minimum parking space dimension
28' x 25'
47’ x 25’

3. COLORS AND MATERIALS. Colors and materials shall be consistent with those shown on the color board as reviewed and approved by the Planning Commission.

4. GARAGE. A minimum of 20' x 20' shall be clearly shown for the interior dimensions of the garage without projections, i.e., FAU, water heater, washers and dryers.

5. BUILDING HEIGHT. The maximum allowable height of the structure shall be shown on the construction plans, not to exceed the 108.20- 153.75 foot elevation. That the applicant shall have both the project Archaeologist (Singer & Associates) and Geologist (Earth Systems Pacific) on site during excavation to determine the depth of existing fill material. Should it be determined that the fill extends to a depth greater than the four feet originally proposed Appendix 1 - Page 45

by the archaeologist, the applicant shall be required to lower the residence to the greatest extent possible. However, the applicant shall not be required to lower the residence below the fifteen-foot height limitation. Additionally, the applicant shall provide a report or reports to the Planning Division providing justification for any proposed change in fill depth. Condition altered by Planning Commission at meeting of October 14, 2003.

6. NONPERMITTED LANDSCAPING. The applicant has installed landscaping on site without approval from the City and without including the landscape area within the total developed area calculation for the project. The applicant shall either remove the landscaping and return the area to its natural condition or revise the plan and include the landscape square footage in the overall developed area calculation, keeping the square footage below the 5,000 square feet permitted by ordinance. Condition removed by Planning Commission at meeting of October 14, 2003.

7. LANDSCAPING AND IRRIGATION PLANS. Landscaping and irrigation plans encompassing the entire site shall be submitted by the project applicant to the City for review and approval by the project planner. A separate landscape plan shall be submitted to the Planning Division, for review and approval by the Parks Recreation and Beautification Commission, for those areas located within the public right of way. Detailed calculations shall be provided on the face of the all plans indicating the landscape square footage. The landscape plans shall include the following provisions:
a. Use of low-water-using irrigation systems. Drip irrigation shall be used where feasible.
b. Landscape Design Plan (including plant list)
c. Irrigation Design Plan
d. The landscape plans shall not include any planting with a mature height that exceeds fifteen (15’) feet in height. Additionally, the applicant shall maintain all plantings at a height that does not exceed the high point of the roof.

Language in bold added by the Planning Commission at the meeting of October 14, 2003.

8. ARCHAEOLOGICAL MONITORING. The applicant shall provide for archaeological monitoring during all grading and trenching phases of construction. Copies of the contracts for archaeological monitoring shall be provided prior to issuance of a building permit. The monitors shall consist of a qualified archaeologist and a representative of the local Chumash.

9. ECOBLOCK DRIVEWAY PAVERS. The applicant shall redesign the driveway, reducing the square footage to an amount which brings it into compliance with the 5,000 square foot of developable area permitted by both the 1983 Zoning Code and the 1993 General Plan. Condition removed by Planning Commission at meeting of October 14, 2003.

10. HOUSING IN LIEU. The applicant shall pay housing in-lieu fees consistent section 17.26.022 of the Inclusionary Housing Ordinance. The payment of these fees are made in a good faith effort by the applicant to comply with the affordable housing dedication requirement placed on the property as part of the approvals adjacent Sunset Palisades Subdivision.

Appendix 1 - Page 46

11. OPEN SPACE DEDICATION. The applicant shall record a permanent open space easement over any portion of the development not occupied by a structure or driveway or other developed area.

The form of the easement shall be reviewed and approved by the Planning Division prior to recordation. Said document shall contain a clause stating that the easement cannot be altered without approval of the City Of Pismo Beach.

12. FEE PAYMENT. The applicant shall pay additional fees in the amount of $577.00 for the second variance request.

BUILDING DIVISION:

13. NOISE ANALYSIS. That the applicant shall utilize where feasible the design recommendations listed in the noise analysis prepared by David Lord and dated March 5, 2003.

ENGINEERING DIVISION:

14. Drainage plans shall include all wall drainage, which shall be in separate systems from surface and roof drainage, or shall be protected against reverse flow in the event of a system failure. Plans shall include entire drainage concept from lot.

15. The City Engineering Division shall approve any landscaping or irrigation within a public right of way where it is to be maintained by the property owner. Landscaping shall not obstruct sight distances between the proposed driveway and Shell Beach Road.

16. The applicant is responsible for securing Public Utility signatures for proposed utility relocations.

Utility comments shall be forwarded to the City Engineer for approval.

17. All existing above ground utilities located on the property and property frontages shall be relocated underground and is entirely the responsibility of the owner/applicant and applicant’s builder/engineer.

18. The owner shall offer for dedication to the Public the following dedications and easements per the City’s Municipal Code and General Plan:

Public Utility Easement, 6’ beyond newly dedicated property line frontage.

Right of Way Dedication, in the amount equal to 6’ along owner’s/applicant’s property frontage which will allow a right-of-way of up to 72’ for a proper half-width per the Street Classification Plan and Design Standards of the General Plan. It is recommended that no buildings, walls or other permanent structural items other than concrete flatwork or landscaping, which is to be maintained by the property owner, be constructed with the newly dedicated right-of-way. If so, an Encroachment Agreement shall be applied for through the Engineering Division. See Encroachment Agreement Requirements under item no. 12.

Applications to process these easements and dedications can be obtained through the Engineering Division.

Appendix 1 - Page 47

19. No Building Permits will be issued during the period from November 1 to March 31 without prior approval of the Engineering Division and an approved erosion and sediment control plan and construction schedule. Erosion control measures shall be in place and approved by the Engineering Division prior to the start of construction.

20. A preliminary grading soils and geology report for the project shall be prepared by a registered professional and supported by adequate test borings. The report shall address the need for slope protection, groundwater issues, lot drainage and potential erosion issues, and shall identify requirements for grading and structural footings. All earthwork design and grading shall be performed in accordance with the approved soils report. Mitigation measures shall be addressed, especially for groundwater issues. Additionally, prior to any grading activity, a geologic evaluation shall be conducted to determine if naturally occurring asbestos is present on site. Should asbestos be present, the applicant shall contact APCD to determine appropriate mitigation for grading activities.

21. Detention Storage shall provide mitigation for post development runoff versus pre-development runoff as determined by the Soils Report and the Engineering Division.

Sewer System Requirements

22. Applicant is required to show the existing location of the sewer main in the street and location of the sewer lateral, if existing, on the plans. If no lateral exists or existing lateral is in poor condition, then owner/applicant is responsible for all costs, materials and labor for the installation of a new lateral.

Water System Requirements

23. Applicant is required to show the existing location of the water main in the street and location of the water lateral, if existing, on the plans. The size of the existing/proposed lateral, main and water meter shall also be shown on the plans. If existing lateral is inadequate for the proposed water meter, then applicant is responsible for all costs, materials and labor for the installation of a new water lateral.

Fees and Bonds

24. The Applicant shall pay the following fees prior to receiving a building permit:

City Standard Fees
Any other fees found pertinent to the project as determine by the City Engineer.

25. An Encroachment Agreement must be applied for through the Engineering Division if applicant decides to construct permanent structures within the newly dedicated Right of Way. Agreement must be reached with City Council, signed and recorded prior to issuance of Building Permit.

Applicant shall understand that receiving a Conditional Use Permit does not in any way guarantee that an agreement can, or will, be reached with the City Council for the encroachment into the right-of-way.

Appendix 1 - Page 48

FIRE DEPARTMENT

26. Automatic Fire Protection Sprinkler System – Provide an Automatic Fire Sprinkler System to be monitored by an approved U.L. listed central station.

This system shall comply with requirements of the Pismo Beach Fire Department and NFPA NFPA standard 13D installed in the two unit structures

27. Four sets of plans and two sets of calculations shall be submitted and approved prior to the issuance of a building permit.

28. Water service/fire service laterals and meters serving the property shall be a minimum of 1.5 inch or larger as determined by hydraulic calculations.

29. Piping on open joists or rafters shall be secured to prevent lateral movement. The piping shall be adequately secured to restrict movement of piping upon sprinkler operation.

30. 200E+ glass bulb heads are recommended in garage area.

31. Sprinklers shall be positioned so that the response and discharge are not unduly affected by obstructions such as ceiling slope, beams or light fixtures.

32. Sprinklers are not required in clothes closets, line closets and pantries where the area of the space does not exceed 24 square feet and the least dimension does not exceed 3 feet and the walls and ceilings are surfaced with non-combustible materials as defined in NFPA 22Q, Standards on Types of Building Constructions.

33. Sprinklers shall be required in attics, crawl spaces and other concealed spaces that are intended for living purposes or storage.

34. FAU=s or other open flame appliances located in concealed areas (i.e. attics, sub-floor areas) shall be protected by sprinklers.

35. Provide a minimum of three spare sprinklers and a wrench in the spare head box.

36. Provide sprinkler head cut sheet.

37. Sprinkler system design shall include provision for a reduction in available water pressure of 10%.

B. CONDITIONS TO BE MET DURING CONSTRUCTION:

PLANNING DIVISION

1. ARCHAEOLOGICAL MATERIALS. In the event of the unforeseen encounter of subsurface materials suspected to be of an archaeological or paleontological nature, all grading or excavation shall cease in the immediate area, and the find left untouched until a qualified professional archaeologist or paleontologist, whichever is appropriate, is contacted and called in to evaluate and Appendix 1 - Page 49

make recommendations as to its disposition, mitigation and/or salvage. The developer shall be liable for costs associated with the professional investigation.

C. CONDITIONS TO BE MET PRIOR TO REQUEST FOR A FRAMING INSPECTION:

PLANNING DIVISION:

1. ROOF HEIGHT. Prior to requesting a framing inspection, a licensed surveyor shall measure and certify the height of the building including anticipated finishing materials. Height to be certified as shown on approved plans not to exceed 153.75 foot elevation.

D. ADDITIONAL ENVIRONMENTAL MITIGATION MEASURES REQUIRED IN CONNECTION WITH THE PROJECT.

The list of mitigation measures adopted by the Planning Commission in certifying and approving the Mitigated Negative Declaration and corresponding Mitigation and Monitoring program are set forth below as conditions of approval in order to reduce and/or avoid all potential significant impacts to a level of insignificance, pursuant to the requirements of CEQA. The numbering for these conditions/mitigation measures are provided in the order in which they are to be carried out by the applicant and correspond directly to the Mitigation and Monitoring program adopted for this project by the Planning Commission.

Items to be completed prior to issuance of a building permit.

1. The proposed project shall maintain a foundation design that does not contact the lower intact soil profile identified in the Singer reports.

2. The applicant shall submit a phase III archaeological mitigation monitoring plan, which includes the following elements:
a. Archaeological monitoring of all earth moving and excavation work associated with construction, including utility trenching. Monitoring shall include an archaeologist and Native American Monitor recognized by the Native American Heritage Commission as qualified to perform monitoring services. Copies of contracts for the aforementioned services shall be provided to the City Of Pismo Beach Planning Division prior to issuance of a Building Permit. b. Archaeological documentation
Compliance shall be verified by the Planning Division, prior to issuance of a building permit, through the applicant’s submission of a letter explaining how each of the conditions has been met.

4. Prior to issuance of building permits, the applicant shall submit finalized plans along with a letter stating how each of the Soils Engineering Report recommendations has been or will be met. The plans and letter shall be submitted to the Building Division for their review and approval.

Compliance shall be verified by the City of Pismo Beach Building, Engineering and Planning Division, prior to issuance of a building permit, through the applicant’s submission of a letter Appendix 1 - Page 50

explaining how each of the conditions has been met.

Items subject to compliance during construction

3. In the event archaeological resources are found to include human remains, or in any other case where human remains are discovered during construction, the County Coroner is to be notified in addition to the Planning Division so that proper disposition may be accomplished. Compliance will be verified by the Planning Division.

5. Implementation of the recommendations contained within the soils engineering report and incorporated into the plans, shall be verified by a Building Inspector on site. Compliance will be verified by the Building Division.

E. CONDITIONS SUBJECT TO ONGOING COMPLIANCE:

1. SINGLE FAMILY USE RESTRICTION - Uses of the subject property shall be limited to the uses listed in Chapter 17.018 of the Zoning Code (Single Family Residential). Said Chapter and Section 17.006.0400 limit the use of the property to no more than one (1) dwelling unit. No portion of the premises may be rented as a separate living quarters. A Lodging House, as defined by Section 17.006.0655, shall not be permitted.

2. HOLD HARMLESS. The applicant, as a condition of approval, hereby agrees to defend, indemnify, and hold harmless the City, its agents, officers, and employees, from any claim, action, or proceeding against the City as a result of the action or inaction by the City, or from any claim to attack, set aside, void, or annul this approval by the City of the applicant's project; or applicant's failure to comply with conditions of approval. This condition and agreement shall be binding on all successors and assigns.

The property owner and the applicant (if different) shall sign these Conditions of Approval within ten 10) working days of receipt; the permit is not valid until signed by the property owner and applicant.

END –
Appendix 1 - Page 51

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31~1~ T'tTERLFt)~~, ir, ccm~id:;ralic~n ok lh,_ .~~:~~~:ir~~~_ ~~£thc.1'ti.rt,~itt~~ (~~~~s~er l7~' 133c;ununission, U~~~ucr Tterehy irrc~ccahl~~° c7ffe, ~:~ t~.~ do ~ c:lr~ ,.n~i +;,::n~~c~~ t~s th;; Housing thcFrity of San I,ui ~~lbispc~ ~s~uirty tier z;:rri;!._r ~iihl~~_~, _~-r, .. pile n4~za~tar~£, hoiksin~;1: ~,_ I~~p;~i~n~ ~~rtfat~ir~~t4uutz~c~.:~ptable ~~~ ttl~ k.~ecutir~~eUtrec~t<~r ~~# tlac Co~tttnts~ic~n, tho lu~~ T:::.fter I,,cat::ciin San l.t_aiv (7Tyt4pt3 C~,~»~Oyzirrd mr~r+~ sp~citicall~~ dr~scrih~;da~ T-r~ES!~Tract ~ fi0, in t}ra C',ity ~~S' Pismo Tt;:ach. Cc~~s~7t~~ of San Luis ~~iispo, State Cif C;~it`~~n~ia au:~ ardingt~~rrraali r;.carded Ma~° I y, 1 yK[) ire bcx~k 1!) at pake 17 c}~ maps." ienipl~asis add~. d'}. -rtntl~.,.~~-~
ntc;. "}7~ ~,;i,,, ~,~ ~~~;~~i~:i'ir~n n,il~_,,::_.::~ restricr,:,~, ~'~i~~t ;~~~~,, ti~tlrcrc~ori3~t~~:r~ac~ p".ancuof the .`~#~;r: the nt~crccn~e~strLCard conditii}tLS E~fac~.ept~'t:iec: ~uE7stantiall} ,;~cc~ ntorfr-~anc:~. i~~tla tl.e ('o~astal C: c~rnrY7issiar~'~ l~uidclir~csi~,rl~~~rz~no:1rnoderat~ u~orrnie hc~usin~.Ln approxnn<ately° 1~)8, ti7e ~rop~.~~~~ ~~~as i~~~•~n~ci1,rofr7K-Itr:ri7pen Sp~rci. ~1r~~undthat Sc± rr~E: t-ir~7e, the hrii~r rn~~r~arcf tTxe prt~per'ti•_ Sta<i ~~II, atto-s-~htadto ita~ c tk~i Ce~~~;t<~IC~~rr7rnissiozi rcn7~} vc 4~zcaffi~rd361c housing cor.c3itic~n ~~:~ the E~ruh~rty. TTe was urisuucssf~e] it ~r~ dc~in~. In i iali~~~, qtr, Ii~:CI ~uhrnittcd ars ;tppiicahan to 1~~,~e. tha prap~rt~~ re~~~n~~c~ try R--] , The ~ppli~~i.iant~~ ssdti:nied in 19Ru, Tn e; rTv~~ ~ ~yt1, ?41r. I3e~11 tiled thL first ui~~t~i~a Ia4ti~°siriks a~:~sr~stthe Gi~,~~ o£Pismo hse.~~ h, al!le~,iti~~ that the '19R 4 ions . }•,;~ttE*~° cons[itulLd :i `'taE~ing" of-his ~rnhrrh~ h~den;~, inuhim all reas~~nable e~cnnnrrtie uce ~9`th~~, pr<~~._rrtt• The C~t~S~ sharti~~ thereafter r~+~~T~c~ its t~ ine ordiii~~cr; tt} T~~r'ini< ?lrr: c~~ri~iti~cEit~~i <~I'unc sini_;lc-fa-irul~~ residcutial unit cn }~rop~rti;;-5z< inc~dOp~.n Sp~cc, c~iEh sg_~:`Ie~icc~nditii~nsAgenda
Item: 6.ECity
Council Meeting of June 5, 2007 Page 61 Page
148
Appendix 1 - Page 52

Attachment G
i'~~iicha~~! Si,ai~~les- ~~
5~.~:tcl~~b~r 30, Z~tjti
Page `'
Iri iS)'~l~ irryr_2Y~: diatr~!g~ b~=~~tr~_ t l~ tri;~l t=i tkx f.~rt.~~sui` hrc~us~ht h4~ ttr F3~~;. ;F.~_ (i~~~ ~~~i 11~~. ~GI1 eluerrd itrt.~ a r_ett.lctrlCr~t arrr,:znc:nt ~~~IZerelay tIa~ Cit~4' ~~~~~~Id ac~,.~irc~ thu prup~::1.z~ tear 1jf1,f_1f'U. ~~~`itl~it~ ~'~~~~ aite:- tiist;~~~~,_~iicnl ~t~~v 4i?~t~-~l _ ine C,'il ~ ~i~~awcr,•:i tti~, 1t~1ay I i 9ii(1 f~L'~~ ?Cti C1C-C11L3fC, ,lil~ t}1C ~~1i'1' IIltCi"I€ti,u ~'1T~. ~C17 117 1! t'1~ ~, •,~1Crii~: : ..1`~~i,i[1~:'it ~4'dS VC9111 ~~ ku~virai~ b~~tl ~ro~;~irc~ tituc~u~htraud since 1~ir. l:.~il r,-;~a r :r ~1~-;~.,lo .:.i i;~~;: L~is,~,~:-~ce aft~ie ~~ff~cr to d~dicat~ ra~i~c~i tic- ~~.~a+ 1,,r,-.~~,t i~hc ~av.~~t~it '~~..,- Cit~,~ iidtiir~ 3ezch z: ~~~~;tcd a~cur ~~fiet' ~f ifcdizaztic,,; .~~5 ~thEaut prc:judict.". This ~~,~aw ::~~~dc-rt frtana ciraclFalea~t ni.u~~b~;r 2U~M1~1rJ'!~[,,~7. r~; ..,r_ic.i a~ ~ ~ .~uat~~ RC.S:cird~r's ~ttsi,::~ ~ u~i :1~ri1 4. ;'.C'}i}~:. Un~~._n::~rtu1°, tht. rejecTicarz5 lw th;; Cite ttnd ~#~~~LU dca not end the. ingtlin~ ire~ans~e ~ai~t}~:c; 1'+ttri~rlfr;,.:rf Im_•i::i;=~;.~'t f~sr#lt ire tlae qur~t~_d ~a~~~~gzt3~?ta °~rnc c.~an~e- is apprUVe~; arzd housixi~; iw lar~7p~rd on t.~u rC~r~~in~~c:r afihe lainja;;~ty, it ~ti~il1 ha~~~~ to hc. ni~i~~rt~~ for lr2tiv tc naa~zra#e if~cor~i~: h~7usir~ir_ t~~a i1 lvill'7c s;~bje~ct tc a ct~5udc;d tit~c; urstll the affcr tv dcdic<'3t~ is ~itlact~ ~4itiidra~v<t_ t7titllifie~ yr accr~~tec~ °I"}~c ~;itt~ dacs not szrzs~ tc,~ ba e~pd-~sed to p~tc~~tlal }itit=atic~n ~~~cr an~~ htattsfn~ aaC is 1.aeis7~ nt~ili ~~r ultin,srt~l~, rna~- be built. on t}~c ~ro~ert}~. ar~d thus is ~~~hv ~,re n~a~:e tlti=. re~~iir-~ut of }emu i hnpe this; Ic-tiE;r ~x~l~~ins the C'ity~s ~~r~sition fiil)ti~. Plc~ti~c rzs~.,T fr~c~ 1x~ c.,-ill ane if~~~~i~ 9ri~rc.:~ny rlt-iGStiaa~ n;1 ibis s~rill.cr.

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Agenda Item: 6.E
City Council Meeting of June 5, 2007 Page 62

Appendix 1 - Page 53

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Agenda Item: 6.E
City Council Meeting of June 5, 2007 Page 63

Appendix 1 - Page 54

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Agenda Item: 6.E
City Council Meeting of June 5, 2007 Page 64

Appendix 1 - Page 55

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Agenda Item: 6.E
City Council Meeting of June 5, 2007 Page 65

Appendix 1 - Page 56

Attachment G
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Agenda Item: 6.E
City Council Meeting of June 5, 2007 Page 66

Appendix 1 - Page 57

Description: San Luis Obispo,CA Document - Year.DocID 2016.61945 Page: 1 of 5 Order: efdcdcx Comment:

Appendix 1 - Page 58

Description: San Luis Obispo,CA Document - Year.DocID 2016.61945 Page: 2 of 5 Order: efdcdcx Comment:

Appendix 1 - Page 59

Description: San Luis Obispo,CA Document - Year.DocID 2016.61945 Page: 3 of 5 Order: efdcdcx Comment:

Appendix 1 - Page 60

Description: San Luis Obispo,CA Document - Year.DocID 2016.61945 Page: 4 of 5 Order: efdcdcx Comment:

Appendix 1 - Page 61

Appendix 1 - Page 62

Description: San Luis Obispo,CA Document - Year.DocID 2016.61945 Page: 5 of 5 Order: efdcdcx Comment:

Appendix 1 - Page 63

Attachment _

Email from Megan Martin verfying that landscaping is excluded for the 5,000 square feet as substantiated in Planning Commission resolution R-2003-0027.

Appendix 1 - Page 64

Andrew Grow
Grow Residence irrigation water collection and storage system design Megan Martin Wed, May 12, 2021 at 4:02 PM
To: Steve Puglisi , Matt Downing
Cc: Andrew Grow , Chloe Johnson , Michael Gruver
, "Fleishman, Dave"
Hi Steve,
What a history this site has! Thank you for the opportunity to assist you and Mr. Grow and your patience as I gathered the information and history of this site.

The request to install 10 above ground water tanks for purposes of rainwater capture would be considered ‘new development’. There are a few extra layers to this request that require your consideration before the City will consider an application:

1. The property is zoned Open Space – Natural Resource Protection Zone (OS-1), and there is a limitation of 5,000 sf of development footprint (Section 17.051.030.B.1); this is inclusive of landscaping.

2. The existing residence and improvements (minus a portion of the existing driveway – PC decision) already exceeds the 5,000-sf maximum development footprint, as modified by the settlement agreement arising out of the litigation between the former owner and the City.

3. Allowing the tanks adds to the already exceeded development footprint limit that was originally imposed; this would ultimately need to be considered by the Planning Commission and/or City Council.

4. A CDP and Variance would be required to exceed the 5,000-sf limitation within the building envelope; at this stage, the findings will be difficult to craft as the property has already exceeded the limitation through unpermitted development that was later authorized by way of the litigated settlement agreement. We have not conducted any kind of site inspection, either, to determine whether any additional development was done after the settlement was reached.

5. If your client, after review of this information, was interested in pursuing the CDP and Variance to exceed the 5,000-sf limitation imposed by LCP requirements, below is a list of items the City would require as a part of that application:
·All development, including extent of grading for utilities, sump pump, and the tanks must occur within the building envelope as recorded and described in Exhibit B within the Open Space Easement Agreement.
·As a part of the application, planning will require the following supplemental information:
o Phase I archaeological surface survey for the areas subject to disturbance/development o Location, extent and calculation of all grading activities o Site plan with easement boundaries and all proposed development to demonstrate all activity will occur within the easement
o Landscape improvement plan to identify total square footage of landscaping and water usage o Though not required, I highly recommend developing a rendering of the tanks demonstrating they will not be visible from Shell Beach Road or Highway 101 (this has been a point of contention of the PC at the last few hearings)
Appendix 1 - Page 65

6. If your client, after review of this information, was interested in modifying the building envelope, a major modification to the existing CDP, CUP, and Variance for the 5,000-sf limitation would be required. The same information listed above would be required. Additionally, since the building envelope was part of a recorded document (Doc. #2016061945) a revised easement document would need to be developed and recorded.

Following your review, please let us know how your client would like to proceed. I’m happy to set up a meeting to discuss next steps with the appropriate persons depending on the option you choose.

Sincerely,
Megan Martin
she/her/hers
Planning Manager
Community Development, City of Pismo Beach
Tel: (805) 773-4658 | www.pismobeach.org
760 Mattie Rd | Pismo Beach | CA |93449
From: Steve Puglisi
Sent: Wednesday, May 5, 2021 11:25 AM
To: Megan Martin ; Matt Downing
Cc: 'Andrew Grow' ; Chloe Johnson ; Michael Gruver

Subject: RE: Grow Residence irrigation water collection and storage system design External Email
[Quoted text hidden]
Appendix 1 - Page 66

Ap
p
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6 7

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Owner:Andrew Grow
3990 Shell Beach Road
Pismo Beach, CA 93449
Contractor:

Permit Types:

Building
Electrical

Project Address: 3990 Shell Beach
Parcel:

Tract/Lot:

Description:

Install New Gate to Existing Driveway
Valuation:$10,000.00
Census:Residential Alteration
Construction Permit No: B20-000384
Application Date: 11/30/2020
Issue Date: 02/09/2021
City of Pismo Beach · Building Department · 760 Mattie Road · Pismo Beach, CA 93449 ·Office (805) 773-7040

Occupancy
Group
Construction
Type
Area
Fees:

Description Total Cost
Building Permit
($5,001-$25,000)344.83
SMIP Residential 1.30

OWNER-BUILDER DECLARATION
I am exempt from licensure under the Contractors State License Law for the following reason:

By my signature below I acknowledge that, except for my personal residence in which I must have resided for at least one year prior to completion of the improvements covered by this permit, I cannot legally sell a structure that I have built as an owner-builder if it has not been constructed in its entirety by licensed contractors. I understand that a copy of the applicable law is available upon request or at http://www2.leginfo.ca . .gov/calaw.html
WARNING: Failure to secure workers’ compensation coverage is unlawful, and shall subject an employer to criminal penalties and civil fines up to $100,000, in addition to the cost of compensation, damages as provided for in section 3706 of the labor code, interest, and attorney’s fees.

WORKERS COMPENSATION DECLARATION
I hereby affirm under penalty of perjury that I certify that, in the performance of the work for which this permit is issued, I shall not employ any person in any manner so as to become subject to the and agree that, if I should workers compensation laws of California, become subject to the workers compensation provisions of Section 3700 of the Labor Code, I shall forth with comply with those provisions.

I certify that I have read this application and state that the above information is correct, I agree to comply with city ordinances and state laws relating to building construction, and hereby authorize representatives of this city to enter upon the above-mentioned property for inspection purposes. Unless noted under "Special Conditions", this permit becomes null and void if work or construction authorized is not started within 180 days, or if construction or work is suspended or abandoned for a period of 180 days any time after work is commenced.

Appendix 1 - Page 70

Date Type Reference Received From Amount
12/15
/2020 Credit 226372 Andrew Grow 344.83
02/09
/2021 Credit 266052 Andrew Grow 462.52
Green Build Fee 1.00
Plan Review 390.80
Laserfiche 23.45
Electrical 45.97
Total Fees: 807.35
Balance Due: 0.00
Payments:

Special Conditions:

Comments:

Signature of Contractor, Authorized Agent or Owner
02/09/2021
Date
APPLICANT COPY Received Job Card _____________
Appendix 1 - Page 71

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 01

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 02

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 03

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 04

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 05

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 06

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 07

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 08

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 09

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 10

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 11

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 12

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 13

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 14

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 15

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 16

Exh. A [To 2/22/22 Letter to Planning Commn]
Appendix 2 - Page 17