Coastal Development Permit – Common Pitfalls in the Application Process

You have a prime piece of coastal real estate that is ready for development. The views of the ocean are outstanding. The environment is pristine. Who wouldn’t want to be there everyday?

Before you get started with your project in the California Coastal Zone you need a Coastal Development Permit (CDP). This comes with a lot of uncertainty, and there are a few key factors that must be addressed in order to receive a CDP:

  • Permit Jurisdiction
  • The location and extent of any environmentally sensitive habitat areas (ESHAs) on or adjacent to your property.
  • Feasible mitigation measures consistent with city and county standards.
  • Other technical studies relevant to the kind and location of the proposed development (geotechnical report, wave uprush study/coastal engineering report, biological report, wetland delineation report, archaeological resource report, and visual or viewshed analysis).
  • Appeal Process
  • Coordinating with Commission or local government staff.

PERMIT JURISDICTION

Depending on the location of your project you may need a CDP from the local government or directly from the Coastal Commission as your project can be within the Commission’s original permit jurisdiction, local government’s certified Local Coastal Program (LCP) permit jurisdiction, federal land, or area of deferred certification. If your project is bisected by the Coastal Zone Boundary or by the Commission’s retained jurisdiction and the certified LCP jurisdiction boundary, Pursuant to Section 30601.3(a)(2) of the Coastal Act, the applicant, appropriate local government, and the Commission may agree to consolidate a permit action for a project that spans local and state jurisdictions. You can work with the local government or Coastal Commission staff to determine permit jurisdiction if you are uncertain. For permits within the Commission’s original permit jurisdiction and for consolidated permits, the Coastal Act policies will be the standard of review. For permits within the LCP permit jurisdiction, the LCP policies and zoning regulations will be the standard of review.

THE ROLE OF ESHAS

Most pitfalls occur as the result of where and how ESHAs on the property are determined. ESHAs are designated through study using standards and definitions provided under the LCP or Coastal Act, which can be subject to interpretation. Disturbed sites tend to be more difficult to establish clear limits of any ESHAs – this is especially true of farmed or leveled sites (though in some cases disturbance is so extensive that absence of ESHAs can be more easily established).

A biological survey and a hydrologic study early on provide a clearer picture of ESHA boundaries that may require more extensive investigation. In cases where sensitive plants and animals may be present, protocol-level surveys early in the process are valuable and time sensitive. These surveys minimize costly delays down the road if the project is appealed. If there are wetlands present on the site, A complete and formal Coastal Act wetland delineation is recommended to ensure the validity of ESHA determinations that may not be obvious. The Coastal Act uses the one parameter wetland definition, so any areas that contain wetland vegetation, soil, or hydrology would be considered wetlands. Development within wetlands are limited to those uses listed under Coastal Act Section and LCP wetland policies only when no feasible less environmentally damaging alternative exists, and where feasible mitigation measures have been provided to minimize adverse environmental effects.

Additional study is recommended for areas containing:

  • Observable native plants
  • Standing water (potential habitat for California red-legged frog, a federally endangered species)
  • Stands of eucalyptus (butterfly surveys)
  • Large open grassland areas with trees (raptor surveys)
  • Signs of ditching or ponding or changes in the vegetation (wetland delineation)
  • Publicly available databases reveal protected species on or adjacent to the site

LCPs have standardized measures for avoiding and/or minimizing impacts to ESHAs and wetlands that must be incorporated into final design and permits. The exact measures for your project are determined by correspondence between City staff and regulatory agencies. In some cases these measures are outdated or unfeasible. Efforts to revise such measures prior to adoption of the LCP are crucial. In rare cases prescribed setbacks can be reduced. Many LCPs are currently undergoing review and revision so be sure to look for updates as they are available.

GEOLOGY, CULTURAL RESOURCES, AND AESTHETICS

Other potential hurdles that can arise in locations along the coastline relate to seismic and geologic hazards. This is particularly true of sites with cliffs or on hillsides on the coast. Cultural resources can also be problematic though uncommon except when near streams or seeps. Visual or aesthetic impacts as well as ADA accessibility can be points of contention. All of these factors can be addressed through proper planning and working with firms experienced in obtaining CDPs. WRA has ongoing relationships with technical specialty firms and can make recommendations to you based on your project specifics.

APPEALS PROCESS

Anyone can appeal the issuance of CDP and there are sometimes repeat appealers in regions where coastal development is active. Most appeals draw on inconsistency with the LCP land use plan and development guidelines or with report findings on ESHAs and associated impacts. Many residents are opposed to any new development. Public outreach in this area can sometimes do more harm than good, particularly in the early phases of the project unless it has desirable traits such as public access or recreational opportunities. (Generally speaking, any project that contains public access or recreational opportunities has a better chance of being approved than a gated community or other restrictive development – this anomaly tends to be true in many communities, not just coastal communities).

COORDINATING WITH COMMISSION STAFF

The role of Commission Staff is to review the project and local approval and ensure it is consistent with the LCP land use policies and zoning regulations. Commission staff will raise their issues with the project though appeals, resulting in a public hearing and Commission vote. The Commission will first vote on determining whether or not the local approval raises a substantial issue of consistency with the LCP policies and standards under which the appeal was filed. If they determine no substantial issue exists, then the appeal is overturned and the local government approval holds. It is our experience that projects with the least amount of study are subject to the most scrutiny. There are a number of strategies that can be employed for working with Commission staff during their environmental review.

In the event Commission staff determine substantial issue, then the Commission takes over permitting authority for the project and a hearing before the Commission is necessary. Close coordination with Commission staff can result in a modified project that both parties can agree on. Ex-parte communication is strongly recommended to garner support from Commissioners prior to the hearing to limit the hearing to exclude public comment. There are a number of knowledgeable attorneys and public relations firms that know each of the Commissioners and are experienced at ex parte communication. WRA can recommend individuals for this task if should it become an issue.

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