September 28, 2023
Mayor Waage and Council
City Hall 760 Mattie Rd
Pismo Beach, CA 93449
Re: Oct 3, 2023 Hearing Item Tract 3181 Beachcomber Drive, #P21-000050 Honorable Mayor and City Councilmembers:
My brother Tom McNeal and I, as the applicants for the above captioned Project, are writing to formally submit to the record our objection to Engineering Condition B-4 regarding the fee title dedication of Lot 22 of the Project which consists of the portion of the property located between Highway 101 and Shell Beach Road.
We have already indicated that we will happily dedicate the 1.11-acre Lot 21 — equivalent to 32.2% of our gross 3.44-acre parcel - to the City for the South Palisades Bluff Top Park.
Additionally, the Staff Report indicates that General Plan -Local Coastal Program Policy LU-B-2 requires that Lot 22 - an additional 0.38 acres or 11% of our parcel - be retained as open space. In other words, Pismo Beach is asking that we dedicate as fee simple title 1.49 acres or 43.3% of our property - in order to build needed housing on our property. While we have no issue with dedicating Lot 22 for open space, we are requesting that such dedication be made through an easement rather than a fee title dedication to the City.
Policy LU-B-2 states in part:
"Open Space
The area between Shell Beach Road and the 101 Freeway shall be retained as permanent open space. No further land division shall be approved in this area. Density transfers, public acquisition or other methods shall be used to achieve the open space goal. Properties for density transfer need not be in the same ownership.... " 9/28/2023 - Page 1
What the Staff Report does not state, and further was not explained to the Planning Commission during their Q&A with staff at their August 22, 2023 hearing, is that the GP-LCP permits the establishment of open space either as a fee dedication or by Open Space Easement.
Specifically to this point, GP-LCP Policy PR-9 states:
"Policy PR-9
Private Sector Open Space, Parks and Recreation
The City shall recognize the contribution of the private sector to parks and recreation and encourage cooperative continuation and expansion of such contributions. All new planned developments shall be required to provide either public and/ or private parks and recreation facilities. When possible said areas shall connect with adjoining park and recreation areas which are existing or planned.
All such development shall either be dedicated in fee to the public or have a dedicated open space easement placed upon the property to preclude future development."
It was also suggested at the Planning Commission hearing that we are being asked to dedicate the open space in fee, "just like other properties in the area including the parcel to the north." We have checked the ownership pattern between Shell Beach Road and Highway 101, from El Portal to Spyglass Drive. Of the 15 properties we can identify along this stretch, 12 parcels are privately owned and only 3 lots are owned in fee by the City. As a subset specific to the South Palisades Planning Area, 7 of the 8 inland parcels are privately owned (see attached exhibit). We are also advised that recent subdivision activity approved by the City in the North Spyglass Planning Area to our immediate south have retained their adjoining Highway 101 inland parcels privately. It is an overstatement to suggest demand for fee dedication is the predominant occurrence in this area.
Our concerns focus on the fact that staff has restricted the information being presented to the Planning Commission (and presumably the City Council) to limit the options available to those bodies for satisfying the City's open space objectives for this property. As noted above in Policy LU-B-2, either a density transfer, public acquisition or other methods are stipulated in your GP- LCP as the available techniques to secure the lands along the freeway as permanent open space. 9/28/2023 - Page 2
As presented to the Planning Commission on August 22nd, no density transfer has been recognized and no public acquisition has been offered that could justify the dedication of this site to the City.
We also respectfully take exception to staff's comments under questioning by the Planning Commission to the effect that the South Palisades Specific Plan (SPSP) was never certified by the Coastal Commission and therefore is advisory only. We object to this interpretation because several Policies of the SPSP speak directly to the point we are making; that open space easements are available and, in some instances, preferred options for establishing open space along the Highway 101 corridor.
The 1980 General Plan -Local Coastal Program Land Use Plan stated that the South Palisades Planning Area would be developed under a Specific Plan. The 1980 document does not state "...under a Specific Plan certified by the CA Coastal Commission...". We participated in and monitored nearly a dozen public hearings on adoption of the SPSP in the 1980's and never once do we recall the Coastal Commission either objecting to the Plan contents or asking that the SPSP be submitted to them for "certification". The City's 1993 LCP update certified by the Commission further reinforces this conclusion.
The 1992-1993 CA Coastal Commission -certified Local Coastal Program Land Use Plan (LUP) states very clearly in Policy LU-B-1 that
"South Palisades - Planning Area B - Background
The South Palisades Planning Area is developing by the guidelines of a Specific Plan adopted in 1986. The focus in this area is on clustered residential development, ..."
To be clear, the certified LCP makes specific reference to the adopted SPSP in this Policy.
If the City insists on fee title acquisition of Lot 22, it our belief that it is a taking without compensation. This point was succinctly made by Planning Commission Chair Prichard during the August 22, 2023 Planning Commission Meeting:
"It should be handled and maintained as open space with an easement. That has been done on many other properties, and I would support that. But I would not support the fee title dedication. To me, that feels like a taking and feels inappropriate. So, for me, easement yes, fee title no." 9/28/2023 - Page 3
We understand that the purpose and intent of City Policies are to identify Lot 22 as open space. If the dedication can be made through an easement, we will undertake and be responsible for the planting and continued maintenance of the open space area of Lot 22.
In addition to the Community Garden concept, we have also stated our willingness to offer a more passive landscape treatment that preserves the overview while providing the neighborhood with aesthetically pleasing open space.
We believe the fee dedication requirement of Lot 22 is unconstitutional under Nollan v. Cal.
Coastal Comm., 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). There is no essential nexus, let alone rough proportionality, between the impacts of our project and dedication of a lot to the City. Furthermore, we've been advised that even the easement is questionable, but for the purposes of settling this issue we can agree to provide the easement and waive any rights to challenge this compromise. If the dedication cannot be made through an easement, we respectfully submit our objection to the record and reserve our legal remedies on this matter.
Sincerely,
WO -A(
Fred McNeal
605 Via Cumbres
Fallbrook, CA 92028
Proposed Modifications to Engineering Condition B-4-A:
B. CONDITIONS TO BE MET PRIOR TO THE RECORDATION OF FINAL MAP
ENGINEERING DIVISION
4. The owner shall offer to dedicate on the map to the City the following. The location and alignment shall be to the description and satisfaction of the City Engineer:
A. Irrcvocablc Offer of Dedication (by easement in fcc title), Lot 22 ...balance of Condition to remain as presented...
9/28/2023 - Page 4
5 Private
Ownerships
• 3 Planning Areas
• Sunset Palisades
• So. Palisades
• No. Spyglass
• 15 Lots from El Portal
to Spyglass Drive
• 3 City Owned Lots
• 12 Privately
Owned Lotsll
Tract 3181 - McNeal
Beachcomber Drive