Loading...
HomeMy WebLinkAbout06 - Modify the Categorical Exclusion Order to Exclude Some Residential DwellingsQ SEW Pp�T CITY OF �m z NEWPORT BEACH c�<,FORN'P City Council Staff Report May 8, 2018 Agenda Item No. 6 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Seimone Jurjis, Community Development Director - 949-644-3232, sjurjis@newportbeachca.gov PREPARED BY: Patrick J. Alford, Planning Program Manager, palford(o)_newportbeachca.gov PHONE: 949-644-3235 TITLE: A Request to Modify the Categorical Exclusion Order to Exclude Some Residential Dwellings from Coastal Development Permit Requirements ABSTRACT - Staff is requesting the City Council consider submitting to the California Coastal Commission a modification to Categorical Exclusion Order CE-5-NPB-16-1 that will exclude single -unit and two -unit dwellings with floor area ratios of 2.0 from the permit requirements of the California Coastal Act. RECOMMENDATION: a) Find the action exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1 — Existing Facilities), Section 15302 (Class 2 — Replacement or Reconstruction), Section 15303 (Class 3 — New Construction or Conversion of Small Structures) and Section 15332 (Class 32 Infill Development Projects) of the CEQA Guidelines, because it has no potential to have a significant effect on the environment; and b) Direct staff to submit to the California Coastal Commission a modification to Categorical Exclusion Order CE-5-NPB-16-1 that will exclude single -unit and two -unit dwelling units with floor area limits of 2.0 times the buildable area from the permit requirements of the California Coastal Act. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: The California Coastal Act (Coastal Act) allows the California Coastal Commission (Coastal Commission) to create categorical exclusion orders, which exempts specific categories of development that do not have the potential to create a significant adverse effect on coastal resources or on public access from coastal development permit (CDP) requirements. 6-1 A Request to Modify the Categorical Exclusion Order to Exclude Some Residential Dwellings from Coastal Development Permit Requirements May 8, 2018 Page 2 In 1977, the Coastal Commission granted the City Categorical Exclusion Order E-77-5, which excludes single -unit and two -unit projects from CDP requirements. Specifically, the order applied to the R-1, R-1.5 (now R -BI) and R-2 Zoning Districts with the exception of the first row of lots adjacent to the beach, bay, or wetlands, major undeveloped residential sites, Planned Community Districts and gated communities. On November 4, 2016, the Coastal Commission approved Categorical Exclusion Order CE-5-NPB-16-1 (Cat Ex) with conditions, which are substantially consistent with the City's 1977 order. The Cat Ex applies the R-1, R -BI and R-2 Zoning Districts within the coastal zone (see Attachment A), except in the following areas: • The first row of lots adjacent to the beach, bay, or wetlands • Major undeveloped residential sites • Gated Communities • Lands subject to the public trust The Cat Ex allows floor areas to 1.5 times the buildable area' before a CDP is required. However, R-1 and R-2 Coastal Zoning Districts have floor area limits of 2.0 times the buildable area in areas other than Corona del Mar. Therefore, a CDP is required in order to achieve the floor areas allowed under the Zoning Code and the certified Local Coastal Plan (LCP). The historic trend is to maximize residential floor areas. Prior to the City receiving a certified LCP, a single -unit or two -unit project in the coastal zone would need to apply to the Coastal Commission for a CDP if the project 1) had a floor area greater than 1.5 times buildable area of the lot; 2) was located on the first row of lots adjacent to a shoreline; and/or 3) was located in a gated community (e.g., Bay Shores). However, the Coastal Commission commonly waived the CDP requirement for such projects because they presented no potential significant impacts to public access or coastal resources. Therefore, many projects did not need a CDP. In 2014, for example, the Coastal Commission granted waivers for over one-third of the projects that would have otherwise required a CDP. After the City received a certified LCP, the City began processing CDPs instead of the Coastal Commission. One major difference is there is no longer an opportunity for a CDP waiver as when the Coastal Commission had CDP authority. This is because the certified LCP does not allow the City to grant CDP waivers within areas that are appealable to the Coastal Commission. Over 68 percent of the R-1, R-1.5 and R -BI coastal zone properties are located within appealable areas. Staff is requesting to modify the Cat Ex to include projects with floor areas 2.0 times the buildable area. All other conditions of the Cat Ex would remain unchanged. This modification would potentially result in 60 less CDP applications processed annually; a reduction of up to 50 percent. As a result, many single -unit and two -unit property owners would be relieved of the time and expense of a CDP application. On average, it takes six to eight weeks for an applicant to obtain a CDP at an average cost of $2,000. Buildable area is defined as the area of a development site, excluding the minimum front, side, and rear setback areas. The Cat Ex 1.5 floor area limit only applies to on non -conforming lots (4,000 square feet or less) and in areas where a majority of the lots are nonconforming. 6-2 A Request to Modify the Categorical Exclusion Order to Exclude Some Residential Dwellings from Coastal Development Permit Requirements May 8, 2018 Page 3 Additionally, modifying the Cat Ex would relieve staff of the time to process a CDP application. Most CDP applications are considered by the Zoning Administrator at a public hearing. Each application requires on average 12 hours of additional staff time to complete and issue or deny a CDP. It must be stressed that a modified Cat Ex would not increase the floor area limits in the certified LCP; rather, it would allow the maximum floor area limits of the certified LCP to be achieved without a CDP if the project conforms to all of the conditions of the Cat Ex, including consistency with the certified LCP. Coastal Commission approval of the modified Cat Ex will require a two-thirds vote at a public hearing. The Coastal Commission will be required to make the following findings: • There is no potential for any significant adverse effect, either individually or cumulatively, on coastal resources; • There is no potential for any significant adverse effect, either individually or cumulatively, on public access to, or along, the coast; • The exclusion will be subject to terms and conditions to assure that no significant change in density, height, or nature of uses will occur without further proceedings pursuant to the Coastal Act and that the exclusion may be revoked at any time by the Coastal Commission, if the conditions of exclusion are violated; and • Tide and submerged land, beaches, and lots immediately adjacent to the inland extent of any beach, or of the mean high tide line of the sea where there is no beach, and all lands and waters subject to the public trust shall not be excluded. The analysis provided in Attachment C supports that all of these findings can be made. ENVIRONMENTAL REVIEW: Pursuant to the authority and criteria contained in the CEQA, the proposal is exempt from California Environmental Quality Act (CEQA) pursuant to Section 15301 (Class 1 - Existing Facilities), Section 15302 (Class 2 - Replacement or Reconstruction), Section 15303 (Class 3 - New Construction or Conversion of Small Structures) and Section 15332 (Class 32 - Infill Development Projects) of the CEQA Guidelines. Although the recommended action does not authorize any development, the type development within the specified geographic area that would be excluded from coastal development permit requirements (i.e., the demolition and/or construction of single -unit and two -unit dwellings) is except from CEQA. The Class 1 exemption includes the demolition of single -unit and two -unit dwellings in urbanized areas; the Class 2 exemption includes "replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced;" the Class 3 exemption includes the construction of limited numbers of new, small structures, including single -unit and two - 6 -3 A Request to Modify the Categorical Exclusion Order to Exclude Some Residential Dwellings from Coastal Development Permit Requirements May 8, 2018 Page 4 unit dwellings; and the Class 32 exemption covers an in -fill development projects consistent with General Plan and applicable development standards where the site is no more than five (5) acres, has no value as habitat for endangered, rare, or threatened species, is adequately served by all utilities and public services, and does not result in significant effects relating to traffic, air quality, water quality, or any other significant effect on the environment due to an unusual circumstance. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Categorical Exclusion Area Map Attachment B — Categorical Exclusion Order CE-5-NPB-16-1 Attachment C — Coastal Act Section 30610(e) Analysis Attachment A Categorical Exclusion Area Map 6-5 Attachment B Categorical Exclusion Order CE-5-NPB-16-1 • • STAFF RECOMMENDATION AND RESOLUTION ON CATEGORICAL EXCLUSION ORDER NO. CE-5-NPB-16-1 Staff recommends that, following a public hearing, the Commission adopt the following resolution and related findings. A. APPROVAL OF THE CATEGORICAL EXCLUSION ORDER WITH CONDITIONS Motion: I move that the Commission adopt Categorical Exclusion CE-5-NPB-16-1 for the City of Newport Beach subject to the conditions suggested in the staff report. Staff Recommendation for Certification of Categorical Exclusion: Staff recommends a YES vote. Passage of this motion will result in the adoption of the order of categorical exclusion as conditioned. Public Resources Code Section 30610(e) requires an affirmative vote by two-thirds of the appointed Commissioners to adopt a Categorical Exclusion. Order: The Commission by two-thirds vote of its appointed members, hereby adopts this Order as conditioned as consistent with the requirements of 30610(e) and 30610.5(b) of the Coastal Act to exclude the category of development detailed in the findings, from the permit requirements of the Coastal Act. Development subject to this Exclusion Order is limited to demolition and/or construction of single -unit and two -unit dwelling units and their appurtenant facilities in the R- 1, R -BI, and R-2 Zoning Districts within the geographic areas shown on Exhibit #1. The exclusion does not apply to any development located on the first row of lots adjacent to the beach, bay, and wetlands; major undeveloped residential sites; Planned Community Districts; gated communities; and to tidelands or submerged lands, beaches, any lands or water subject to or potentially subject to the public trust, or to uncertified segments where the City does not have coastal permit issuing responsibility. Pursuant to the findings herein, the excluded development does not have the potential for any significant adverse impacts, either individually or cumulatively, on public access or coastal resources. This Categorical Exclusion, as conditioned, will assure that no significant change in density, height, or nature of uses excluded by the Order will occur without further proceedings under the Coastal Act or certified Local Coastal Program, if applicable. B. SPECIAL CONDITIONS This Categorical Exemption Order is granted subject to the following conditions: Lot Coverage. Structures subject to this exclusion shall be designed so that the gross structural area, including storage, parking, and stairways, does not exceed 1.5 times the buildable area on non -conforming lots (4,000 square feet or less) and in areas where a majority of the lots are non- conforming. 2. Parking. A minimum of two parking spaces shall be provided for each residential unit, regardless of size. To the maximum extent practicable, parking shall be provided on the alley side of the lot and in no case shall parking be permitted in the required front setback. Page 1 of I 1 6-10 3. Density. Duplexes shall only be permitted on lots 2,400 square feet or greater. 4. Applicable Zoning. Development pursuant to this exclusion shall conform, unless otherwise limited by this order, to the policies and regulations of the City of Newport Beach Local Coastal Program as certified by the Commission. 5. Implementation. The City of Newport Beach shall, at an appropriate stage in the local approval process for development subject to this exclusion, distribute to the applicant for such local approval a form provided by the Executive Director of the Coastal Commission. After final local governmental approval, the City shall send the completed form to the Coastal Commission. The completed form shall include a certification by the City that the approved development conforms to the terms and conditions of this order. The form shall be provided to the Coastal Commission and to any person who has requested such notice within five (5) working days of issuance. Additionally, per Section 13244(c) of the California Code of Regulations, this categorical exclusion shall become effective twenty (20) working days following Coastal Commission receipt of notification unless the Executive Director objects to the exclusion. The determination of whether a development is categorically excluded for purposes of notice procedures shall be made in reference to this Categorical Exclusion Order. Where an applicant, interested person, or City has a question, or the City is challenged on the determination as to the appropriate designation for the development, the City shall notify the Commission by telephone of the dispute/question and shall request an Executive Director opinion on the City's determination per dispute resolution procedures in the Implementation Plan Section 21.50.050(B). 6. Public Trust. In the event that any competent agency or court determines that any lands excluded by this order are subject to the public trust, this exclusion shall immediately become void as to those lands and any development undertaken on those lands shall be subject to the full permit requirements of the Coastal Act of 1976. 7. Effectiveness. This Categorical Exclusion Order shall not become effective until final certification of the Local Coastal Program (LCP) by the Commission. Page 2 of 1 I 6-11 City of Newport Beach Categorical Exclusion Order CE-5-NPB-16-1 The Commission by a two-thirds vote of its appointed members hereby adopts, by regulation, an order, pursuant to Public Resources Code Sections 30610(e), categorically excluding from the permit requirements of the California Coastal Act of 1976 the category of development within the specifically defined geographic areas below: A. CATEGORY OF DEVELOPMENT AND GEOGRAPHIC AREA This order categorically excludes the demolition and/or construction of single -unit and two -unit dwelling units and their appurtenant facilities in the R- 1, R -BI, and R-2 Zoning Districts within the Coastal Zone in the geographic area depicted on the Categorical Exclusion Map included as Exhibit 91. The Categorical Exclusion Order does not include the first row of lots adjacent to the beach, bay, wetlands, major undeveloped residential sites, Planned Community Districts, and gated communities. B. FINDINGS The Commission hereby finds, for the reasons set forth in the attached staff report, that this exclusion, as conditioned, presents no potential for any significant adverse effect, either individually or cumulatively, on coastal resources or on public access to, or along the coast, and that this exclusion will not impair the ability of local government to prepare a local coastal program. C. CONDITIONS In order to assure that the adoption of the exclusion will cause no significant change in density, height, or nature of uses in the excluded area and to implement the exclusion, this order is subject to the conditions above in Section II.B and the regulations regarding rescission and revocation in Section IIID below. D. RESCISSION AND REVOCATION Pursuant to Title 14 of the California Code of Regulations Section 13243(e), the Commission hereby declares that the order granting this exclusion may be rescinded in whole or in part at any time if, after public hearing by a majority vote of its appointed membership, the Commission finds that the terms and conditions of the exclusion order no longer support the findings specified in Public Resources Code, Section 30610(e). Further pursuant to Section 13243(e), the Commission declares that this order may be revoked at any time that the terms and conditions of the order are violated as provided in Public Resources Code, Section 30610.5. FINDINGS IN SUPPORT OF APPROVAL WITH CONDITIONS The following findings support the Commission's approval of Categorical Exclusion Order CE-5- NPB-16-1 for the City of Newport Beach with the conditions outlined in Section II.B above. The Commission hereby finds and declares the following: Background In 1977 the Commission approved Categorical Exclusion Order E-77-5 for the City of Newport Beach. In its approval of the Categorical Exclusion Order in 1977, the Commission found that, for the Page 3 of 11 6-12 proposed types of development within the exclusion'areas involved, development did not have the potential to negatively impact coastal resources due to the scope and location of the development. No amendments were ever made to E-77-5 and it has been in effect for almost 40 years. The Land Use Plan (LUP) for the City of Newport Beach was effectively certified on May 19, 1982, and subsequently amended multiple times. The City underwent a comprehensive LUP update approved by the Commission on October 13, 2005, in preparation for an Implementation Plan (IP) submittal, another update in 2009, and numerous project specific amendments in the past ten years. The Implementation Plan (except for one area of deferred certification) was approved by the Commission at its September 8, 2016 meeting and will be submitted back to the City for acceptance of the Commission's modifications. Final certification of the LCP has not yet occurred. Categorical Exclusion Order E-77-5 will expire upon final LCP certification by the Commission. With the goal of preventing a lapse in the Categorical Exclusion, in a letter to the Coastal Commission dated February 8, 2016, the City has requested a new Categorical Exclusion that includes the same categories of development that were excluded from coastal development permit requirements within the same geographic areas as are in the 1977 Categorical Exclusion Order. The Commission supports granting continuation of the Categorical Exclusion after LCP certification with (1) amendments to Special Condition 4 in order to require that development pursuant to this exclusion shall conform to the regulations set forth in the certified Local Coastal Program and to Special Condition 5 regarding implementation of the Categorical Exclusion and (2) addition of Special Condition 7 to ensure that this Categorical Exclusion Order shall not become effective until final certification of the LCP by the Commission. Existing Conditions and Future Trends Approximately all residentially zoned lots within the coastal zone in the City of Newport Beach are built out. The trend in Newport Beach in the last forty years has. been in -fill development with the replacement of residential structures in presently developed areas. As proposed, the Categorical Exclusion would exclude the demolition and/or construction of single -unit and two -unit dwelling units and their appurtenant structures and facilities in the R-1, R -BI, and R-2 Coastal Zoning Districts from coastal development permit requirements. Impacts to Coastal Resources The Commission must determine that the development categories proposed for exclusion within the defined geographic areas of Newport Beach will not have, either individually or cumulatively, a potential for any significant adverse effect on coastal resources or on -public access to, or along, the coast. Previously, the 1977 Categorical Exclusion required development pursuant to the exclusion to conform to the zoning in effect on the date the order was adopted by the Commission. This 2016 renewed Categorical Exclusion amends that condition to instead require development pursuant to this Categorical Exclusion to conform to all applicable policies and regulations of the certified Newport Beach Local Coastal Program (Special Condition 4). A new condition would delay the effective date of the new Categorical Exclusion Order until final certification of the LCP by the Commission (Special Condition 7). In order to qualify for a Categorical Exclusion, development within the Categorical Exclusion Zone (per the Maps included as Exhibit #1) in the form of demolition and construction of single -unit and two -unit structures and their appurtenant structures would be required to meet all the requirements and Page 4 of 11 6-13 development standards of the certified LCP. Implementation Plan Chapter 21.18 —Residential Coastal Zoning Districts R -A, R-1, R -BI, R-2, and RM) contains the applicable specific development standards regarding lot area, density/intensity, setbacks, height, fencing, landscaping, and parking. In addition to these development standards, the demolition and construction of new structures must be in compliance with all the development standards in Part 3 of the Implementation Plan which include Chapter 21.30 - Property Development Standards, Chapter 21.30A — Public Access and Recreation, Chapter 21.30B — Habitat Protection, Chapter 21. 34 — Conversion or Demolition of Affordable Housing, Chapter 21.38 — Nonconforming Uses and Structures, Chapter 21.40 — Off Street Parking, Chapter 21.44 — Transportation and Circulation. Only development which meets all applicable policies and regulations of the Newport Beach Local Coastal Program, including the certified Land Use Plan and Implementation Plan, would be excluded. Applications for a Categorical Exclusion from CDP requirements which are not consistent with the certified LCP would remain subject to the coastal development permit requirements of the LCP. In addition, any exclusion granted shall be subject to terms and conditions to assure that no significant change in density, height, or nature of uses will occur without further proceedings under this division, and an order granting an exclusion under subdivision (e) of Section 30610 may be revoked at any time by the Commission, if the conditions of the exclusion are violated. Only the demolition and construction of single -unit and two -unit structures and their appurtenant structures is proposed for exclusion under the Categorical Exclusion Order; no other type of development is proposed to be excluded from CDP requirements in this Categorical Exclusion Order. Moreover, these exclusions will not apply to the Banning Ranch area of deferred certification, to the Irvine Coast segment of Newport Beach which has a certified Local Coastal Program administered by the County of Orange, or to development upon any lands and waters subject to or potentially subject to the public trust, such as tidelands or submerged lands, beaches and the first row of lots immediately adjacent to the inland extent of a beach, or the mean high tide line where there is no beach. Public Access Section 30210 of the Coastal Act states: In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all people consistent with public safety needs and the need to protect public rights, rights ofprivate property owners, and natural resource areas from overuse. Section 30252 of the Coastal Act states in relevant part: The location and amount of new development should maintain and enhance public access to the coast by (])facilitating the provision or extension of transit service... (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation... Demolition and construction of single -unit and two -unit structures in gated communities or planned communities where issues of public access to the beach may exist and are not yet resolved are not included in this Categorical Exclusion Order. Therefore, the exclusion will not foreclose the ability for these public coastal access issues to be addressed through the CDP process. Per Categorical Exclusion Order Special Condition #4, an application requesting an exclusion from CDP requirements for the demolition and/or construction of single -unit and two -unit structures must Page 5of11 6-14 conform to the all applicable policies and regulations of the Newport Beach Local Coastal Program. Implementation Plan Chapter 21.30 contains the development standards for new development in the coastal zone, including the minimum parking requirement of two parking spaces for each unit regardless of size. Furthermore, Categorical Exclusion Order Special Condition .#2 requires a minimum of two parking spaces shall be provided for each residential unit, regardless of size and that to the maximum extent practicable, parking shall be provided on the alley side of the lot and in no case shall parking be permitted in the required front setback. Thus, as conditioned, the Categorical Exclusion Order presents no potential for any significant adverse effect, either individually or cumulatively on public access to, or along the coast. Coastal Dependent Development Section 30255 of the Coastal Act states: Coastal -dependent developments shall have priority over other developments on or near the shoreline. Except as provided elsewhere in this division, coastal -dependent developments shall not be sited in a wetland. When appropriate, coastal -related developments should be accommodated within reasonable proximity to the coastal -dependent uses they support. In its certification of the City's Land Use Plan, the Commission identified, through the designation of land uses, those areas where coastal -related and coastal -dependent developments would be appropriate. As proposed, the Categorical Exclusion Order does not exclude development proposed in commercial or mixed use coastal zoning districts (appropriate for visitor -serving facilities) or development along the first row of lots adjacent to the beach, bay and wetlands, and thus, will not result in any possible adverse impact to coastal dependent or coastal related development or visitor -serving facilities. . Scenic and Visual Qualities Section 30251 of the Coastal Act states: The scenic and visual qualities of coastal areas shall be considered and protected as a resource ofpublic importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. 1Vew development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting. The proposed Categorical Exclusion Order would require development projects consisting of the demolition and/or construction of single -unit and two -unit structures to conform to the all applicable policies and regulations of the Newport Beach Local Coastal Program. The City's certified Land Use Plan contains policies requiring the protection of the scenic and visual qualities of the City's coastal zone. Among those policies are requirements related to the maximum height of new development. Implementation Plan Chapter 21.18 contains the development standards for new development in the coastal zone, including lot coverage, density, and height limits for structures in R1 and R2 coastal zoning districts. Height restrictions for R1, R -BI and R2 structures are 24 -ft, for a flat roof and 29 -ft. for a sloped roof. Implementation Plan Section 21.30.060(C)(2) allows for the height of a structure to be increased by 4 -ft. A structure with a flat roof may be increased up to a maximum of 28 -ft. and a structure with a sloped rooftop to 33 -ft. However, these increases are only allowable through a CDP if certain findings can be made. No increase in height would be allowable with a Categorical Exclusion Page 6 of 1 i 6-15 from CDP requirements. If a proposed development in the Categorical Exclusion Zone sought a height exception, then it would need to go through the CDP process. Habitat Section 30240 of the Coastal Act states: (a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas. The majority of the geographic area covered by this Categorical Exclusion is built out and urbanized. Residential lots either abut other residential lots or streets. However, the residential lots along Buck Gully and Morning Canyon which are included in this Categorical Exclusion go down into the canyon in to open space/habitat, The certified Land Use Plan (LUP) identifies both canyons as Environmental Study Areas. These are relatively large, undeveloped areas that contain natural habitat that may be capable of supporting sensitive biological resources. Portions of the Environmental Study Areas are known to contain habitat that constitutes Environmentally Sensitive Habitat Area (ESHA). The natural communities/habitats found within Buck Gully and Morning Canyon are presumed to be ESHA, unless there is compelling site-specific evidence to the contrary. Buck Gully is a-74 acre Environmental Study Area dominated mostly by Diegan coastal sage scrub and southern mixed chaparral along the canyon slopes, with southern willow scrub, annual grassland, and coastal freshwater marsh at the canyon bottom supported by a creek that flows along the canyon bottom the length of the gully. The lower portion of Buck Gully is isolated from the upper Buck Gully by Coast Hwy and is closely confined by residential development on the south and north canyon slopes. The central section of the canyon immediately northeast of Coast Hwy is also closely confined by residential development on the canyon slopes. Chaparral and coastal sage scrub in these areas is impacted by the adjacent residential development, disturbed due to vegetation clearance for fire prevention by the homeowners and invasive ornamental plant species. The upper portion of Buck Gully is a broad, open, relatively undisturbed canyon, however, much of the native vegetation near the rim of the canyon is also cleared for fire prevention. It is highly probable that some habitat areas of Buck Gully may be considered ESHA. Morning Canyon is an 11 acre Environmental Study Area and is characterized by disturbed southern mixed chaparral along the canyon slopes and bottom. The lower southwestern section of Morning Canyon is separated from the upper section by Coast Hwy. The entire canyon is highly disturbed as many of native plant communities have been displaced by non-native, ornamental, and invasive plant species that have invaded the canyon from adjacent residential areas. There is less probability that habitat areas of Morning Canyon may be considered ESHA. Both the policies of the LUP regarding Environmental Study Areas and the standards and regulations of the Implementation Plan (IP) provide protection of sensitive biological resources. IP Chapter 2130B -- Habitat Protection requires an initial site resource survey to identify the presence or the potential for wetlands or sensitive habitat, vegetation, and wildlife species on the site for proposed Page 7 of 11 6-16 development that is located within or within 100 feet of an Environmental Study Area. Furthermore, this IP Chapter requires establishment of certain buffers from wetlands and other sensitive habitats, and requires mitigation and monitoring programs for allowable impacts to sensitive resources that cannot be avoided through the implementation of project alternatives that would avoid impacts. The certified LUP contains Policy 4.4.3-18 establishing canyon development setbacks based on the predominant line of existing development for Buck Gully and Morning Canyon; specifically, development is not permitted to extend beyond the predominant line of existing development by establishing a development stringline where a line is drawn between nearest adjacent corners of existing structures on either side of the subject property for both principal structures and accessory improvements and Policy 4.1.3-1 that, among other things, requires a strict control to encroachments into natural habitats of Environmental Study Areas to prevent impacts that would significantly degrade the habitat. Proposed residential development in Morning Canyon and Buck Gully would be required to meet these requirements of the certified LCP in order to be granted a Categorical Exclusion from CDP requirements. If the proposed development is not able to meet the LCP requirements, for example, if the required buffer from sensitive resources is not provided, then the proposed development could not be granted a Categorical Exclusion. A CDP would instead be required to ensure that development in areas adjacent to environmentally sensitive habitat areas is sited and designed to prevent impacts which would significantly degrade those areas, and is compatible with the continuance of those habitat areas. Geologic Hazards Section 30253 of the Coastal Act states: New development shall do all of the following: (1) Minimize risks to life and property in areas of high geologic, flood, and fire hazard. (2) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction ofprotective devices that would substantially alter natural landforms along bluffs and cliffs. The geographic area proposed to be excluded from CDP requirements for the demolition and construction of residential structures include coastal canyon areas that may be considered areas of high geologic risk. These include Buck Gully, Morning Canyon and coastal bluffs not subject to marine erosion with Bayside Drive at the toe of the bluff and along Cliff Drive. Per policies in the certified LUP, principal and accessory structures (i.e., decks, patios, walkways) on residential lots along Buck Gully, Morning Canyon and coastal bluffs not subject to marine erosion are required to be setback from the canyon or bluff edge in accordance with the predominant line of existing development in the subject area. Furthermore, LUP policies require accessory structures on coastal bluffs not subject to marine erosion to be removed or relocated landward when threatened by erosion, instability or other hazards. These lots are all mostly built out and frequently re -develop. The Commission has consistently found that development on coastal canyon slopes or in areas of geologic risk such as along bluffs raises the potential for adverse impacts. The proposed Categorical Exclusion Order does not include the first row of lots adjacent to the beach, bay or wetlands, thus bluffs subject to marine erosion usually considered areas of high geologic risk are not included in this Categorical Exclusion Order. Page 8 of 11 6-17 According to the Implementation Plan regulations and standards, only development that does not raise even the potential for adverse impacts may be categorically excluded from coastal development permit requirements. In the case of these coastal canyon lots, proposed development that would result in the demolition of 50% or more of exterior walls, or full demolition and/or construction of a single -unit or two -unit structure and appurtenant structures must demonstrate that individual projects will not result in adverse impacts, and such a finding must be made in a geotechnical report before the project may be considered for exclusion from CDP requirements. Archeological/Paleontological Resources Section 30244 of the Coastal Act states: Where new development would adversely impact archaeological or paleontological resources identified by the State Historic Preservation Officer, reasonable mitigation measures shall be required. All lots subject to the proposed categorical exclusion order have been previously developed. Thus, the likelihood of exposing archeological or paleontological resources in conjunction with a redevelopment project is low. Nonetheless, any development requesting a Categorical Exclusion from CDP requirements on sites known to contain or are suspected of containing archaeological/paleontological cultural resources must meet the regulations established in the Implementation Plan Chapter 21.30105 -- Cultural Resource Protection. The IP's regulation provides for the determination of the nature and extent of on-site archaeological/paleontological cultural resources during the early stages of planning for the development of the site, thereby allowing for a full range of mitigation options. Therefore, if the proposed development involves grading or excavation and it is determined that the site has a high potential for the presence of archaeological/paleontological cultural resources, then a CDP would be required to ensure the protection of those cultural resources. Protection of Marine Environment/Water Quality Section 30230 of the Coastal'Act states, in pertinent part: Marine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes. Section 30231 of the Coastal Act states: The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, minimizing adverse effects of waste water discharges and entrainment, controlling runoff, preventing depletion of ground water supplies and substantial interference with surface water flow, encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats, and minimizing alteration of natural streams. Development consisting of demolition and construction of any structure has the potential for adverse water quality or hydrologic impacts to coastal waters. Any proposed development requesting a Categorical Exclusion from CDP requirements would be required to meet the requirements of Page 9 of 11 Implementation Plan Chapter 21.35 — Water Quality Control requiring both construction phase and post -development plans for water quality protection in order to qualify for a Categorical Exclusion from CDP requirements, Conclusion Section 30610(e) of the Coastal Act allows the exclusion of certain categories of development from the requirement to obtain coastal development permits if the exclusion has no potential for significant adverse impacts to coastal resources or public access, and if the exclusion will not prejudice the local government's ability to prepare a Local Coastal Program. As conditioned, proposed Categorical Exclusion CE-5-NPB-16-1 would have no potential for significant adverse impacts to coastal resources or public access. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) The Commission finds that the adoption of the categorical exclusion with the conditions identified in Part lI of these findings, is exempt from CEQA. Section 21080(b)(9) of CEQA exempts classes of project designated pursuant to Section 21084. The CEQA Guidelines at California Code of Regulations, Title 14, Sections 15300 to 15329 designate classes of development that do not have a significant effect on the environment and are therefore exempt from CEQA, pursuant to CEQA Section 21084 (so-called "Categorical Exemptions"). The City is proposing to exclude one type of development, i.e., the demolition and/or construction of single -unit and two -unit dwelling units and their appurtenant facilities on a legal parcel in specified geographic areas, from the requirement to obtain a coastal development permit. The exclusion of such development in these areas from coastal development permitting requirements falls under various CEQA Categorical Exemptions: Permitting the demolition of a single -unit or two -unit dwelling is categorically exempt from the requirements of CEQA pursuant to Section 15301 of the CEQA Guidelines (Class 1 Categorical Exemption for existing facilities) which exempts the following class of activities associated with existing facilities: Class I consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The types of "existing facilities" itemized below are not intended to be all-inclusive of the types of projects which might fall within Class I. The key consideration is whether the project involves negligible or no expansion of an existing use. Examples include but are not limited to: (l) Demolition and removal of individual small structures listed in this subdivision; (I) One single-family residence. In urbanized areas, lip to three single-family residences may be demolished under this exemption. (2),4 duplex or similar multifamily residential structure. In urbanized areas, this exemption applies to duplexes and similar structures where not more than six dwelling units will be demolished. Similarly, Section 15303(a) of Title 14 of the California Code of Regulations (Class 3 Categorical Exemption for new construction of small structures) identifies the permitting of construction of a Page 10 of 11 6-19 single family residence in a residential zone as a category of development that is exempt from CEQA. And also Section 15303(b) of Title 14 of the California Code of Regulations (Class 3 Categorical Exemption for new construction of small structures) covers two -unit dwellings as well. The LCP's Implementation Plan Chapter 21.18 -- Residential Coastal Zoning Districts (R-1, R -BI, and R-2) contain limitations on the number. of residences allowed per lot. R-1 coastal zoning districts are limited to a one -unit residential structure per lot, and R -BI and R-2 coastal zoning districts are limited to two -unit residential structures per lot. Thus, the permitting of the demolition and/or construction of a single family residence, one -unit and two -unit residential structures exempt from CEQA. Section 15302 of Title 14 of the California Code of Regulations (Class 2 Categorical Exemption for replacement or construction) exempts from CEQA compliance "replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced." Thus, Section 15302 exempts from CEQA residential demolitions and rebuilds that "have substantially the same purpose and capacity" such as those that fall within the scope of this Categorical Exclusion Order. Finally, Section 15332 of Title 14 of the California Code of Regulations (Class 32 Categorical Exemption for in -fill development projects) exempts from CEQA "in -fill" development meeting the following conditions: a. The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. b. The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. c. The project site has no value as habitat for endangered, rare or threatened species. d. Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. e. The site can be adequately served by all required utilities and public services. The type of development activities within the geographic areas covered by this Categorical Exclusion Order satisfy the conditions specified in Section 15332 applicable to in -fill development. No lots greater than an acre are depicted in the geographic areas covered by this Categorical Exclusion Order as shown on Exhibit #2 of this report. Therefore, the Commission's adoption of a categorical exclusion that exempts the demolition and construction of single -unit and two -unit dwellings from the requirement to obtain a coastal development permit within specified geographic areas does not require any further actions by the Commission to satisfy the requirements of CEQA. Page 11 of I1 6-20 Attachment C Coastal Act Section 30610(e) Analysis 6-21 Public Access Another primary goal of the Coastal Act and the certified LCP is to maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners. The certified LCP requires that the provision of public access bear a reasonable relationship between the requirement and the project's impact and that it be proportional to the impact. With rare exceptions, the individual demolition and/or construction of single - unit and two -unit structures do not involve a change in land use, density or intensity that would result in increased demand on public access and recreation opportunities. Furthermore, the Cat Ex requires compliance with the policies and standards of the certified LCP, which ensure that development is designed and sited so as not to block or impede existing public access opportunities. Modifying the Cat Ex to include the floor area authorized in the certified LCP will not increase the potential for impacts to public access. Therefore, a modified Cat Ex presents no potential for any significant adverse effect, either individually or cumulatively on public access to, or along the coast. Coastal Resources A primary goal of the Coastal Act and the certified LCP is to protect, maintain and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources. The discussion below examines how the various categories of coastal resources will be protected under the terms and conditions of a modified Cat Ex. Scenic and Visual Quality Lots along the shoreline have the highest potential to impact the scenic and visual quality of the coastal zone. However, the modified Cat Ex will continue to not include the first row of lots adjacent to the beach, bay, or wetlands, including ocean -facing coastal bluffs. New development on these lots will continue to be reviewed through the CDP process. The Cat Ex will continue to require projects to conform to the all applicable policies and regulations of the certified LCP, including R-1 and R-2 Coastal Zoning District development regulation of residential density, lot coverage, floor area, and building height limits. These development regulations constitute an acknowledged standard development envelope that is the primary means of protecting the scenic and visual qualities of the coastal zone in these areas. Adherence to this development envelope has been the basis for the Cat Ex and its predecessor (Categorical Exclusion Order E-77-5) for over 40 years. The higher floor area permitted under a modified Cat Ex will be contained within this development envelope. 6-22 Therefore, scenic and visual qualities of the coastal zone will continue to be protected. This is evidenced by the fact that prior to LCP certification, the Coastal Commission routinely authorized CDP waivers for projects that would have been excluded under the predecessor Cat Ex if not for floor area ratios greater than 1.5. Furthermore, following LCP certification, the City has approved 31 CDPs for projects on non -shoreline lots (lots not adjacent to the beach, bay, or wetlands) with floor area ratios greater than 1.5 and no more than 2.0. In each case, CDP review found that the project was designed and sited appropriately and found no significant impacts to the public view opportunities or the overall visual quality of the coastal zone. There are special considerations for lots that are located along the coastal canyons of Buck Gully and Morning Canyon. To qualify for a categorical exclusion, the Cat Ex development on these lots must conform to the development standards of the certified LCP Canyon (C) Overlay; this includes the development stringline setback, which limits the extent of development on the canyon face. Any additional floor area permitted under a modified Cat Ex will have to be a contained within the development envelope established by the development stringline setback and other applicable development regulations of the certified LCP. Therefore, the modification to the Cat Ex will not impact the scenic and visual quality of the coastal canyons. There are also lots with bluffs facing the Upper Newport Bay in Dover Shores. Development on these lots are regulated by the LCP Bluff (B) Overlay, which establishes a development area for principal structures based on the predominant line of existing development. As with the canyon lots, any additional floor area permitted under a modified Cat Ex will have to be a contained development envelope established by the applicable development regulations of the certified LCP. Therefore, the modification to the Cat Ex will not impact the scenic and visual quality of this area. Habitats The geographic area of the modified Cat Ex consists of established residential subdivisions in a fully developed, urbanized area. However, some lots are within or adjacent to Buck Gully and Morning Canyon, which are designated as Environmental Study Areas (ESAs) in the certified LCP. ESA are relatively large, undeveloped areas that contain natural habitat that may be capable of supporting sensitive biological resources. The certified LCP provides that ESAs are presumed to be Environmentally Sensitive Habitat Areas (ESHAs), unless there is compelling site-specific evidence to the contrary. Policies and regulations of the certified LCP regarding Environmental Study Areas provide protection of ESHA. Per the Cat Ex, proposed residential development in Morning Canyon and Buck Gully would be required to meet these requirements in order to be granted a categorical exclusion from CDP requirements. If the proposed development is not able to meet the LCP requirements, the proposed development could not be granted a categorical exclusion. A CDP would instead be required to ensure that development in areas adjacent to ESHAs is sited and designed to prevent impacts that would significantly degrade those areas, and is compatible with the continuance of those habitat areas. 6-23 Natural Landforms As stated earlier there are some properties that contain bluffs and canyon properties. However, the natural landforms in these areas are protected by overlay districts in the certified LCP. Any additional floor area permitted under a modified Cat Ex will have to be contained development envelope established by the applicable development regulations of the certified LCP. Therefore, the modification to the Cat Ex will not impact the natural landforms in these areas. Marine Environment/Water Quality In order to qualify for a categorical exclusion from CDP requirements, development is required to meet the requirements of certified LCP Implementation Plan (IP) Chapter 21.35 (Water Quality Control) requiring both construction phase and post -development plans for water quality protection. These protections would remain in effect under a modified Cat Ex. Archeological/Paleontological/Historic Resources Coastal Commission review and approval of the Cat Ex recognized that all lots subject to the exclusion order had been previously developed and that there was a low likelihood of exposing archeological or paleontological resources in conjunction with redevelopment of these lots. Nonetheless, any development requesting a categorical exclusion from CDP requirements on sites known to contain or are suspected of containing archaeological/paleontological resources must meet the regulations established in certified LCP Implementation Plan (IP) Section 21.30.105 (Cultural Resource Protection). These regulations provide for the determination of the nature and extent of on-site archaeological/paleontological cultural resources during the early stages of planning for the development of the site, thereby allowing for a full range of mitigation options. Therefore, if the proposed development involves grading or excavation and it is determined that the site has a high potential for the presence of archaeological/paleontological cultural resources, then a CDP would be required to ensure the protection of those cultural resources. Only one of the historical sites identified in the certified LCP is located within the geographic of the Cat Ex: the Lovell Beach House, which is listed on the National Register of Historic Places. IP Section 21.30.105 would require a CDP for any new development on this site in order to ensure the protection of the historic resource. Likewise, a CDP would be required if new development is proposed on any previously unidentified historic site if there is a potential for a substantial adverse impact as defined by the California Environmental Quality Act (CEQA) on the historical resource. The modification to the Cat Ex will not change these cultural resource protections. 6-24 Prioritv Land Uses A primary goal of the Coastal Act and the certified LCP is to ensure priority for coastal - dependent, coastal -related and visitor -serving development over other development on the coast. The certified LCP identifies through land use designations and zoning, those areas where coastal -dependent, coastal -related and visitor -serving developments would be appropriate. The Cat Ex is limited to R-1, R-2 and R -BI Coastal Zoning Districts, does not exclude development proposed in non-residential and mixed-use coastal zoning districts. Furthermore, the Cat Ex does not include development along the first row of lots adjacent to the beach, bay and wetlands. The proposed modification to the Cat Ex will not change these terms and conditions. Therefore, a modified Cat Ex will not result in any possible adverse impact to coastal dependent, coastal -related development or visitor - serving facilities. The intensity and density of the subject land uses are established by the land use classifications of the certified LCP Coastal Land Use Plan. These land uses are further regulated by the coastal zoning and overlay districts of the certified LCP Implementation Plan. Through certification, the Coastal Commission found that the LCP meets the requirements of, and is in conformity with, the policies of the Coastal Act. Therefore, it can be concluded that if development conforms to the policies and regulations of the certified LCP, the approval of the modified Cat Ex will not have a cumulative significant adverse effect impact on coastal resources. 6-25