Image part of Aug. 2009 city staff report

In an item agendized for the Jan. 19 City Council meeting, Public Works Director Mike Conway proposes that the Council authorize management to accept a conservation easement (instead of unrestricted "fee" ownership) for four acres of property north of 2nd St./east of PCH included in the transaction, narrowly approved by the Council (5-4) in August 2009.

As previously reported by LBReport.com, city management told the Council last year that a Coastal Development Permit wasn't required for the four acre parcel...and that position was disputed by LCWLT. Coastal Commission staff informed City Hall that in its view a Coastal Development Permit is required (LBReport.com coverage, click here).

In a Jan. 19 agendizing memo, city management now proposes the "conservation easement" instead of the Coastal Development Permit:

The Coastal Act provides an exemption from the requirement for a Coastal Development Permit for the acquisition of land for recreation purposes. However, there is resistance at the Coastal Commission staff level to include wetland protection and restoration within this exemption. The primary purpose and objective of the Coastal Act is to "Protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources," and this exchange is intended to fall within this primary purpose and objective. However, City staff believes that acquisition of a permanent conservation easement over these four acres achieves the City's goal of protecting its wetlands while not being defined as "Development" under the Coastal Act.

A conservation easement will be prepared through the City Attorney's Office which will run in perpetuity and will secure the same surface rights as anticipated to be received under the original exchange agreement.

LBReport.com has learned that city management's agendized item has led LCWLT attorney Mel Nutter to send Mayor Bob Foster and City Councilmembers a letter on the matter, again disputing city management's reasoning:

The City staff now claims the City and LCW Partners, LLC (Tom Dean) can avoid the requirement that they apply for a coastal development permit by having LCW Partners, LLC retain fee ownership of the entire parcel while granting the City a permanent conservation easement over the same four acres. The claim is that the acquisition of the easement by the City will help achieve the goal of protecting wetlands.

In fact, quite the opposite may be true. Arguably, the four acre portion of the parcel has the least significant habitat and wetland value and is the most suitable portion of the parcel for future non-wetland development. Ordinarily, private property owners have a constitutional right to some economic use of the property they hold. Because the creation of a conservation easement on the four acre section of the parcel will eliminate all economic use there, as a practical matter the odds have increased substantially that the owner will be successful in obtaining approval of a commercial or other non-wetland project on a more environmentally sensitive area of the parcel in the future. In effect, the proposed conservation easement would have the same potential to negatively impact coastal resources as would a lot split. The Coastal Development Permit process is designed to evaluate the impact that project proposals may have on coastal resources.

A review of the definition of "Development" contained in Section 30106 of the Public Resources Code (the Coastal Act) makes it clear that a legal lot split is only one kind of property division and that other divisions are possible. By granting the City a permanent conservation easement, the property owner effectively would be surrendering all meaningful use and ownership of four acres to the City. The consequence is that a significant property right in and to four acres will be transferred from one party to another. Effectively, that is a division of land. Included within the definition of "development" is a provision that clearly states that any division of land is included even if it is not made pursuant to the Subdivision Map Act or a lot split.

In short, the Los Cerritos Wetlands Land Trust believes that a Coastal Development Permit is still required before this transaction can go forward.

Mr. Nutter, a former chair of the CA Coastal Commission, represented LCWLT in its appeal to the Coastal Commission on the Studebaker/Loynes ("Home Depot") project that resulted in the Commision finding that the appeals raised substantial issues. (The property owner ultimately abandoned a request for a coastal development permit.)

The SE LB land exchange was last approved by the City Council in August 2009 on a 5-4 vote (Yes: S. Lowenthal, DeLong, O'Donnell, Andrews, Lerch; No: Garcia, Schipske, Reyes Uranga, Gabelich). That vote came after the City Attorney's office instructed the Council to re-vote the transaction on grounds the Council wasn't advised of certain material facts prior to its initial Feb. 10 approval vote.

The revote came after the release of emails sought and obtained under the Public Records Act by wetlands advocate Tom Marchese [who has since entered the 3rd dist. City Council race against transaction supporter Councilman Gary DeLong. The emails, first published by Dave Wielenga in TheDistrictWeekly.com, resulted in criticism of what some considered a too-accommodating stance in Mr. Conway's communiques with Mr. Dean and his representatives on the transaction. The City Attorney's office said the revote was necessary because the Council wasn't fully advised of certain unspecified material facts prior to its Feb. 10 vote approving the transaction.

Following the August 2009 Council re-vote, LBReport.com reported that the U.S. Environmental Protection Agency was in the process of pursuing a clean-up of toxic PCB's found to be leaking from oil pump related transformers on part of the property to be acquired by the city. That prompted city management to recommend, with City Attorney concurrence, that the land exchange transaction not be closed until the PCB issues were addressed.

At the request of Councilwoman Gerrie Schipske, the City Council (and the public) heard a presentation from representatives of U.S. EPA on the matter in November...at which time the EPA reps indicated the PCB's found to date were at levels affecting wildlife, not people, and that EPA-directed testing on the property was continuing. (LBReport.com coverage, click here).

In November 2009, LBReport.com reported that an L.A. law firm representing LCW Partners, LLC advised City Hall that the PCB issues were being addressed via an EPA approved work plan, said the City could be reasonably assured it wouldn't face costs/liability on the PCB issue...and indicated that LCW, Partners sought to close escrow on the Council-approved transaction by the end of 2009. (LBReport.com coverage, click here).

[Some other outlets inaccurately claimed that LCW had set a Dec. 31 deadline to close escrow, which it didn't.]

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