basis for appeal revised w table of authorities

8/13/2019 Basis for Appeal Revised w Table of Authorities

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BASIS FOR APPEAL

The Mitigated Negative Declaration (Negative Declaration) adopted by the Planning

Commission is marked by grave deficiencies in its characterization of the environmental

baseline. Instead of performing an accurate, meaningful analysis of the existing environmental

conditions, theNegative Declaration analyzes a hypothetical environmental baseline that, amongother things, fails to account for existing historic and cultural resources as well as existing

recreational opportunities affecting existing uses of the site which the public has acquired a right

to by prescription1. TheNegative Declarationsfailure to account for the existing

environmental settingsrenders it inadequate under section 15125 of the CEQA guidelines2,

which require that the baseline must include existing conditions.

A standard for development, as identified in Policy 1: Protection of existing access

within the shoreline accesssection of the Coastal Plan Policies3(CPP), on page 2-11,

requires that [d]evelopment shall not interfere with the publics right of access to the sea where

acquired through historic use. The project, at its inception, involves closure of the beach duringnight hours which will immediately and significantly impact the historic use of the site. The site,

the Mallagh Landing area (Pirates Cove)is the last piece of undeveloped beach wilderness

between Port San Luis and Oceano, which, according to page 2-5 of the CPP, has experienced

intensive recreational use. The publics intensive recreational use is completely ignored in the

Negative Declarationadopted by the planning commission, which devotes all of one paragraph

to addressing all of the projects impacts to recreation opportunities prior to concluding that the

impact will be insignificant. (See Negative Declaration, p. 2-75 through 2-76). The CPP,

discussing Pirates Cove on p. 2-5 acknowledges that [p]rescriptive rights may existwithin the

area. The mitigated negative declaration is flawed because it fails to address the potentially

significant impacts that the project will have upon the existing environmental conditions

regarding the recreational uses and the prescriptive rights that have arisen as a result of such

1A successful claimant of a prescriptive easementgains not title but the right to make a

specific useof someone else's property. Main St. Plaza v. Cartwright & Main, LLC, 194 Cal.

App. 4th 1044, 1054, 124 Cal. Rptr. 3d 170, 178 (2011)2To decide whether a given project's environmental effects are likely to be significant, the

agency must use some measure of the environment's state absent the project, a measure

sometimes referred to as the baseline for environmental analysis. Thus, an inappropriate

baseline may skew the environmental analysis flowing from it, resulting in an EIR that fails to

comply with CEQA. Citizens for E. Shore Parks v. California State Lands Com., 202 Cal. App.

4th 549, 557, 136 Cal. Rptr. 3d 162, 171 (2011), review denied (Mar. 14, 2012), as modified on

denial of reh'g (Jan. 27, 2012)3Available athttp://www.slocounty.ca.gov/Assets/PL/Elements/Coastal+Plan+Policies.pdf
http://www.slocounty.ca.gov/Assets/PL/Elements/Coastal+Plan+Policies.pdfhttp://www.slocounty.ca.gov/Assets/PL/Elements/Coastal+Plan+Policies.pdfhttp://www.slocounty.ca.gov/Assets/PL/Elements/Coastal+Plan+Policies.pdfhttp://www.slocounty.ca.gov/Assets/PL/Elements/Coastal+Plan+Policies.pdf


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uses, in a manner inconsistent with the provisions of the CPP that implement 30211 of the

Coastal Act4.

Policy 1 of the CPP requires that where prescriptive rights existthe appropriate

amount of public use should be established through the review process at the time of

development. In addition to the interference with the publics prescriptive right to use PiratesCove at night, the project will potentially impact the character of the prescriptive sunbathing

rights that have arisen through historical use at Pirates Cove. As a preliminary matter,

sunbathing is a Coastal Dependent Recreation and the Coastal act gives priority to coastal

dependent recreational activities (CPP, p. 3-2). More significantly, it is important for the County

to recognize that the allowable usage of the prescriptive easement is defined by its historical

usage. Twin Peaks Land Co. v. Briggs, 130 Cal. App. 3d 587, 594, 181 Cal. Rptr. 25, 28 (Ct.

App. 1982). See also Cal. Civ. Code 806, which in relevant part states that the extent of a

servitude is determined bythe nature of the enjoyment by which it was acquired.

The Planning Commission does not have the right to, by issuing theNegativeDeclaration, circumvent the discussion of the projects potentially substantial interference with

the prescriptive rights of the public at stake which have been acquired through historic use of the

site. This exact issue was considered in the case of Burch v. Gombos, 82 Cal. App. 4th 352, 362,

98 Cal. Rptr. 2d 119, 126 (2000) (Burch), where the Court determined that the the scope of a

prescriptive easement is determined by the use through which it is acquired. A person using the

land of another for the prescriptive period may acquire the right to continue such use, but does

not acquire the right to make other uses of it... We see no reason the same rule should not apply

to a public easement that has arisen throughdedication5. By approving a project that impacts

the historical uses which gave rise to the prescriptive rights on the project site, such that the

project may ultimately lead to extinguishment of the prescriptive rights, without any discussion

of the projects impact upon those uses or rights, the planning commission has failed to comply

with the policies and standards in the CPP, the CEQA guidelines, the provisions of the Coastal

Act, and Article 10, Section 4 of the California Constitution6.

4Development shall not interfere with the public's right of access to the sea where acquiredthrough useincluding, but not limited to, the use of dry sand and rocky coastal beaches5See also Jones v. Deeter, 152 Cal. App. 3d 798, 802, 199 Cal. Rptr. 825, 827 (Ct. App. 1984),

holding that [a] dedication is legally equivalent to the granting of an easement.6No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of

a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude

the right of way to such water whenever it is required for any public purpose


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TABLE OF AUTHORITIES

Cases

Burch v. Gombos, 82 Cal. App. 4th 352, 362, 98 Cal. Rptr. 2d 119, 126 (2000)......................................... 2

Citizens for E. Shore Parks v. California State Lands Com., 202 Cal. App. 4th 549, 557, 136 Cal. Rptr. 3d

162, 171 (2011), review denied (Mar. 14, 2012), as modified on denial of reh'g (Jan. 27, 2012) ............ 1

Jones v. Deeter, 152 Cal. App. 3d 798, 802, 199 Cal. Rptr. 825, 827 (Ct. App. 1984)................................ 3

Main St. Plaza v. Cartwright & Main, LLC, 194 Cal. App. 4th 1044, 1054, 124 Cal. Rptr. 3d 170, 178

(2011) ........................................................................................................................................................ 1

Twin Peaks Land Co. v. Briggs, 130 Cal. App. 3d 587, 594, 181 Cal. Rptr. 25, 28 (Ct. App. 1982).......... 2

Statutes

30211 of the Coastal Act ............................................................................................................................ 2

Article 10, Section 4 of the California Constitution ..................................................................................... 2

section 15125 of the CEQA guidelines ......................................................................................................... 1

Local Laws

Policy 1: Protection of existing access within the shoreline access section of the Coastal Plan

Policies (CPP), on page 2-11 ................................................................................................................. 1

CPP, discussing Pirates Cove on p. 2-5 ....................................................................................................... 1

CPP, p. 3-2 .................................................................................................................................................... 2

page 2-5 of the CPP ...................................................................................................................................... 1

Policy 1 of the CPP ....................................................................................................................................... 2

Administrative Record

Negative Declaration, p. 2-75 through 2-76 ................................................................................................. 1

basis for appeal revised w table of authorities

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