ccc n patrick veesart letter 10-02-2015

8/20/2019 CCC N Patrick Veesart Letter 10-02-2015

http://slidepdf.com/reader/full/ccc-n-patrick-veesart-letter-10-02-2015 1/6

STA

TE OF

CALIFORNIA-NATURAL RESO

URCES AGENCY

· CALIFORNIA COASTAL COMMISSION

CENTRAL COA ST DISTRICT OFFICE

125

FRONT

STREET SUITE 300

SANTA

CRUZ,

CA 95060

PHON'E: (131) 2 7 4 8 6 3

FAX

: (831 ) 427-4877

WEB :

WWW.COASTAL

.CA.GOV

Marc Wiener

Acting

Plannirig Director

City

of

Carmel-by-the-Sea

P.O . DrawerG

Carmel,

CA

93921

·October 2, 2015

Re: Violation File No. V-3 -15-0106-:- City of Carmel Beach .Fire Ordinance

Dear

Mr. Wiener:

EDMUND

G.

BROWN

. GO

I ERNOR

We understand that

the City of

Carmel has

concerns

about

beach fires and we were

encouraged that the City was addressing those concerns through the coastal

development

permitting process. However, recent actions taken

by

the City, discussed below, seem

to

deviate from that

process

and are

cause for concern. We are hopeful

that

we

can

work together

to

get this process back on track and resolve

these

iss'ues in a

manner that

benefits

both the

citizens

of

Carmel

and

the

many

visitors

that

enjoy your beautiful coastal city.

On August 6, 2015, pursuant

to

California

Government

Code §65858, the

City

Council

of

Carmel-by-the-Sea adopted Ordinance

No

. 2015-Q05 placing a 45-day

moratorium

for fires

on

Carmel

Beach

from

Friday

through

Sunday,

and

on

all National

or

State

holidays

. The

urgency ordinance permits

beach

fires

on

Monday through Thursday only. The stated

purpose

of

the

ordinance is ...

to protect

the public safety, health,

and

welfare by prohibiting

.

uses that

may

be

in conflict

with

the Shoreline Management Plan and the City Municipal Code .

until a beach fire management

program

can

be

implemented

by

the City.

On

September

1, 2015, the City Council extended Ordinance No. 2105-005 for a period

not

to

exceed 10 months

and

15 days. The resolution

adopted

,

by

the City Council to extend

Ordinance No. 2105-005 declared it to be .. .an urgency measure as authorized

by

California

Government Code §65858.

Cali£ornia

Government

Code §65858 allows municipalities

to

enact urgency ·ordinances n

order to

prohibit certain land

uses and to

give the municipalities time to study impacts

and

develop

new

regulations for

proposed new

uses.

The

urgency ordinance took effect

immediately and

circumvented

the

typical

approval

process'of

at

least

two

public meetings

with advance

public notice. State

law

requires that

an

urgency ordinance

enacted pursuant to

·

'



Carmel Beach Fire Ordinance

of

6

§65858 contain findings demonstrating a current and immediate threat

to

public health, safety,

or welfare.

When a local government adopts an urgency ordinance that authorizes an immediate change

in the

intensity of use of water, or access thereto,

such

an

action constitutes development''

and the local government must approve a coastal development permit ( CDP ) to authorize

such action (Local Coastal

Program

( LCP ) section 17.70.020 (Development Definition);

Coastal Act section

30106). Further, when a local government approves an urgency ordinance

that changes a

use that

is otherwise allowed on

land

within the City' s LCP jurisdiction,

the

urgency ordinance is

not

effective until the ordinance is subrnit,ted

to

the Commission for

certification through the LCP amendment process

and

the Commission effectively certifies the

submittal (Coastal Act section 30514; Conway v. Imperial Beach 1997) 52 Cal.App.4th 78,87- ·

88). Here, the City has acted

n

a

manner that both

requires a CDP and requires the

submission of the urgency ordinance, as an LCP amendment, to the Commission for

certification before the urgency ordinance becomes effective and enforceable.·

·o August 7, 2015, pursuant

to

LCP Implementation

Plan

§17.52.180, the Planning Director

issued Emergency Coastal Permit ( ECP ) No. 15-280 authorizing the

45 daybeach

fi±e

moratorium

and associated signage. Section 17.52.180 is as follows:

17.52.180 Emergency Coastal Permits .

A Purpose. This section

provides procedures

for the issuance

of

emergency permits

in

compliance

with

the Coastal Aat.

B.

Applicability. In

the

event of

an

emergency

the

Director may issue a permit

to

authorize

emergency

work in

compliance

with

this section

the

Shoreline Management

Plan

Section

30624

o he

Coastal Act

and

California

Code ofRegulations

Section 13329

.

The Director shall

not issue an

emergenct; permit

for

any work to

be

conducted on any tidelands

submerged lands

or

on

public trust

lands

whether

filled

or

unfilled;

requests

for

emergency work

in

these areas shall

be

referred to the Coastal Commission.

C.

Application. An

application

for .

an

emergency

permit shall

be

filed

with the Director in writing i

time

allows

or

in

person

or

by

telephone i ime does

not

allow.

D. Required Information. The applicant

shall report

to the

Director

the following

information

either

during

or

as soon after

the emergency

as possible:

1

The.nature and

location

of he

emergency;

2.

The

cause

o he emergency

i insofar

as

this can

be

established;

3.

The remedial protective

or

preventative

work

required

to

deal

with the

emergency;

and

·

.




Page

o£6

4. The

circumstances during the

emergency

that appeared to justify the courses

ofaction

taken

including the probable consequences offailing .to take ~ t i o n

E.

Verification ofEmergency.

The Director

shall verify

the

facts including the

existence and

nature of

the emergency

as

time allows.

F Notice.

The Director shall

provide

public

notice

of

he proposed

emergency

work. he

extent and

type

of

notice

shall

be de

tennined by the Director based of

he

nature oft

he emergency

and the

work

proposed.

G Emergency Permit

Approval.

The decision

to

issue an emergency

permit is

at ~ h e sole

discretion

of

the

Director;

provided

that

subsequent land use building and grading

permits

required for the project

shall

comply

with all applicable

provisions of hese

regulations. The

Director

may grant

an

emergency

permit if an emergency exists as

defined

in

Chapter

17. 70 CM C and if he

Director

first finds . hat:

1. An

emergency

exists that requires

action

more quickly

than

would

occur following

normal permit

procedures and the emergency work can

and will

be completed within 30

days

unless otherwise

specified

by

the emergency permit;

2.

Public comment

.

on

the

proposed emergency action has

been

reviewed

,

if ime allows

; and

3. he

work

proposed would be consistent with

the

requirements of

he

certified Local Coasttzl Program

or

would not

impede

attainment

of hese

requirements following

completion

of he

emergency work.

I

H. Emergency

Permit

Contents .

Ifgranted

the permit

shall state

the basis

for the

findings made

by the

Director and shall be subject to reasonable terms and conditions, including:

1.

Language

indicating that the work

accomplished

under an

emergency permit is temporary

unless a

regular permit is

subsequently

issued for

the

work;

2. An expiration date for the emergency permit; and

3 A

condition specifying the necessity

for

the

submittal of a

regular permit applica

tion within

30

days

of he effective date

of

he

emergency

permit.

I

Expiration.

n

em.ergency

permit shall expire

and become void within

seven days

of

ssuance if

t

is

not

exercised

or if he emergency

ceases

to exist.

]

Report

to

Council. For

information

only

the

Director

shall

provide

the

Council

with a written report

describing

the

nature of he emergency and the wqrk involved at the Council s first regularly scheduled

meeting

after the emergency permit

has been

issued. Copies of he permit and the report shall be

available at

the

meeting

and

shall

be mailed to

the

Executive Director of h

e Coastal Commission and

to

all persons

who have requested this

notification_

in w r i t i n ~



Carmel Beach Fire

Ordinance

of 6

K. Normal Permits

Required.

Within

30

days

of

he date

of

ssuance

of

he emergency permit

,

the

applicant shall apply for all

permits

required

by

these regulations, and any

other

pennits

required by the

municipal code.

Failure to file the applications and obtain the required

permits

shall

result in

enforcement action

in

compliance

with

Chapter

17.66

CMC

Enforcement. (Ord

.

2004-02

§

1,

2004;

Ord. 2004-01 §

1,

2004).

As

noted, earlier, the City acted in a manner that authorizes an inunediate change in the

intensity of use of water

or

access thereto,

and

the City

must

issue a CDP to authorize

that

action.

n

this case the City authorized an ECP for the 45-day moratoriwn, but did

not

issue a

follow-up regular CDP to authorize the action beyond the original45-day ECP authorization·

period. As of the date of this letter, the initial

45

days has passed,

and

while the City Council

extended the moratorium, the ECP does not authorize an extension.

Further, §17.52.180(K) requires application for Normal Permits

within

30 days of issuance of

an

ECP. We do

not

believe that the City has applied for

or

issued a Normal Permit in this

matter. Moreover, §17.52.180(H) requires conditions that specify

an

expiration date for

an

ECP

and the necessity for the submittal of a regular permit application within 30 days of the

effective date of the ECP. Emergency Coastal Permit No. 15-280 does not include such

conditions. Finally, §17.52.180(G)(1) states (in relevant part) that: ·

he Director

may grant an

emergency

permit

i

an emergency exists as

defined

in Chapter 17.70 CMC

and

i he Director

first

finds that:

1. n emergency

exists

that requires action more quickly than

would

occur following

normal

permit

procedures, and the emergency work can

and will be completed

within

30 days unless

otherwise

specified by

the emergency permit;

Section 17.70.020 defines emergency

as: A sudden, unexpected occurrence demanding immediate

action

to

prevent

or

mitigate

loss

or

damage to life, Jealth, property

,

or

essential public services."

The City previously

approved

a CDP to authorize a Beach Fire Management Program,

which

did not authorize any prohibition of beach fires on Carmel Beach during State

or

National

holidays and weekends. The City's CDP approval was appealed to the Coastal Conunission

(Appeal No. A-3-CML-15-0033) and is likely to be heard by the Coastal Commission in

December. Carmel's certified Shoreline Management Plan recognizes

that

Recreational fires

have long been

part

of the Carmel Beach tradition. Thus, beach fires are

not

a sudden,

unexpected occurrence demanding immediate action and, as such, the City issued an ECP

inconsistent with the LCP' s ECP procedures identified above. Indeed, the City has been

actively working through the coastal permitting process to.develop a management strategy to

address beach fires, ambient air quality issues,

and

sand

and

water quality issues.



·


PageS of 6

Further, Policy 5.3, Management Policies, of the certified Shoreline Management

provides that beach t;tsers are allowed the opportunity to enjoy a fire for warmth or

cooking ..until10:00 p.m. sputh of Tenth Avenue but at least twenty-five feet from the base of

the bluffs. As currently

e r t i f i e d ~

the LCP does not have any weekend holiday restrictions

on the use of the beach for beach fires. Thus, the urgency ordinance prohibits a use

that

is

currently allowed on Carmel Beach, south of Tenth Avenue, in the City's certified LCP,

and

constitutes an uncertified amendment to the LCP See Conway, supra, at pp. 87-88). As such,

the urgency ordinance

is

not effective

and

enforceable until the City submits

an

LCP

amendment to the Commission for certification and the Commission effectively certifies the

submittal (Ibid.; Coastal Act section

30514).

Even

i f

the City issues itself a regular CDP for the

moratorium,

it

will

be

issuing a CDP

that

is

not

consistent with the currently certified LCP,

which allows beach fires until10:00 p.m. on Carmel Beach south of Tenth Avenue without any

weekend holiday restrictions associated with the public's use of the beach for beach fires.

Therefore, the City does not have the legal ability to issue a valid CDP consistent with the LCP

until the Commission certifies the currently ineffective and unenforceable urgency ordinance

upon

which the City is currently relying to implement the moratorium.

The City jusB:fies issuance of an urgency ordinance based upon air quality issues. However,

based on Commission staff's review of the City's air quality data, (for a 41-day period in

June/July) the data do not appear to support assertions that there is an immediate threat to .

public health and safety. Particulate Matter

PM)

counts are well below the ~ 24-hour

average guidelines. Based on hourly records over

t is

same 41-day period 984 hours), there

· was one four-hour period on July 4 where there were elevated levels of PM, which is to be

expected,

and

one hour on June 27, which appears to be an anomaly. There were

11

hours

during the monitoring period when ambient air quality was in the moderate category. The

rest of the time 968 hours), ir quality was in the good category.

Based on our examination of the data, it appears that the City has improperly used California

Government Code §65858

and

its own emergency e ~ m i t ordinance to implement emergency

measures, the rieed for which does not appear to be supported by ir quality data.

u r t h e r m o r e ~ the Coastal Act does not authorize cities or counties to adopt and enforce

additional regulations that impose further conditions, restrictions, or limitations with respect

to any land or water use

that

are in conflictwith the Coastal Act (Coastal Act section 30005).

The City's actions to apparently circumvent the planning

and

permitting processes by

adopting urgency ordinances (including issuing itself

an

emergency permit) limit public

participation and result in the loss of lower cost public recreational opportunities in the use of

Carmel Beach south of Tenth Avenue. Such actions are

in

conflict

with

access

and

recreation

policies of the

Coastal Act and

the

City's certified LCP

and

are, thus, a violation of

the

Coastal

Act and the City's certified LCP. ·

Commission staff recognizes that beach fires are a concern in Carmel and that the City has a

right to pursue a management

plan

through the permitting and planning process. We look

forward to working with the City to come to a resolution that protects this important public

ccc n patrick veesart letter 10-02-2015

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