The item was taken up at the Coastal Commission's March 10 meeting in Santa Cruz; disagreement with the staff recommendation would have required opposition by three Commissioners...and there was none.
The Appellants in the Coastal Commission action (appealing LB's Planning Commission approval of city management's action) are the Los Cerritos Wetlands Trust (Elizabeth Lambe, Executive Director), Thomas Marchese, Heather Altman, Mary Suttie, David Robertson, El Dorado Audubon Society (Mary Parsell), and Our Town -- Long Beach (Joan Hawley McGrath, Sandie Van Horn, Pat Towner, Cindy Crawford, Tarin Olsen, Kerrie Aley, Allan Songer & Brenda McMillan). On the agendized item, they were supported by two CA Coastal Commissioners -- Mary Shallenberger and Sara Wan.
It's the latest fallout from last year's clearing/scraping of the Loynes/South parcel (by its new owner 2H Construction/Sean Hitchcock), who acquired the property from a Tom Dean-LLC. In the agendized item, Coastal Commission staff wrote in pertinent part:
The Appellants in the Coastal Commission action are the Los Cerritos Wetlands Trust (Elizabeth Lambe, Executive Director), Thomas Marchese, Heather Altman, Mary Suttie, David Robertson, El Dorado Audubon Society (Mary Parsell), and Our Town -- Long Beach (Joan Hawley McGrath, Sandie Van Horn, Pat Towner, Cindy Crawford, Tarin Olsen, Kerrie Aley, Allan Songer & Brenda McMillan)...supported by two CA Coastal Commissioners -- Mary Shallenberger and Sara Wan -- who join with appeal.
APPELLANTS’ CONTENTIONS
The Los Cerritos Wetlands Trust, El Dorado Audubon Society, Our Town – Long Beach, two Coastal Commissioners, and four individuals have appealed the City’s approval of Local Coastal Development Permit No. 0904-15 (Exhibit #4). The local coastal development permit is an after-the-fact approval for weed abatement and to allow the import of 1,000 cubic yards of soil to cap an old dump on the 9.38-acre site that had been disturbed by unpermitted grading on March 19 and 20, 2009.
The appellants contend, in general, that the local action does not comply with the requirements of the certified LCP because the local coastal development permit does not include adequate conditions to require the applicant to restore the habitat that was destroyed as a result of the unpermitted grading and vegetation removal. The appeals contend that the project site should be recognized as containing wetlands and sensitive habitat, and that it is subject to the public trust. Furthermore, the local coastal development permit, while permitting weed abatement, does not include any provisions to protect sensitive habitat and hydrophytic vegetation.
The Commissioners’ appeal, copied below using italic text, contends that:
The City’s approval of the local coastal development permit, absent a detailed habitat restoration plan (the applicant removed the top soil layer and most of the vegetation on the site prior to applying for a coastal development permit), does not conform with or carry out the goals and policies for the project site as set forth by the City of Long Beach certified Local Coastal Program (LCP). The certified City of Long Beach LCP sets forth the following land use policy for the project site, which is Subarea 23 of SEADIP (Southeast Area Development and Improvement Plan):
Map image [not in Coastal Comm'n report] Source: City of LB current SEADIP plan
Subarea 23
a. The two wetland concepts generally outlined shall include a 8.3 acre brackish pond on Area 23 provided that the Executive Director of the California Coastal Commission determines (i) in addition to the setback for buffer, the elevation and setbacks between development and wetland edge shall be sufficient to ensure stability during liquefaction events caused by the maximum credible earthquake; (ii) that the location and operation of the proposed wetland are acceptable to the Regional Water Quality Control Board, the State Department of Health and to the Local Mosquito Abatement District.
b. If approval from these agencies results in reductions to the net size of the proposed wetland, restoration at this site shall only occur if the remaining area is sufficient to create a wetland at least the same size as the existing brackish pond at the Marketplace.
The City’s approval of the local coastal development permit also does not conform with or carry out the following goals and policies contained in the Open Space Element, which are equally weighted policies of the Land Use Plan (LUP) portion of the City’s LCP:
1. Goals: Open Space - Preservation of Natural Resources
b. To preserve and enhance the open space opportunities offered by the inland waterways of the city through improved access and beautification.
g. To preserve areas which serve as natural habitats for fish and wildlife species and which can be used for ecologic, scientific, and educational purposes.
h. To locate, define, and protect other beneficial natural habitats in and about the city.
5. Goals: Open Space – Shaping Urban Development
a. To maintain and enhance existing and potential open space areas which are important as links, nodes, and edges, or provide relief from urban built-form.
8. Policies: Open Space Node – Alamitos Bay & Recreation Park
Conserve and enhance Alamitos Bay – Recreation Park open space node by:
e. Improving the quality of the Bay waters by controlling all forms of possible pollution, both in Bay and in tributaries upstream;
h. Maintaining close surveillance over all proposed projects in the Bay area through the environmental review process;
i. Exerting design controls on proposed improvements in order to prevent degradation of the aesthetic environment;
...
LOCAL GOVERNMENT ACTION
The local coastal development permit that is the subject of this appeal is the follow-up permit for Coastal Commission Emergency Permit 5-09-068-G. Commission staff had issued the emergency permit because the certified City of Long Beach Local Coastal Program (LCP) does not contain provisions for the issuance of emergency permits.
On April 7, 2009, Coastal Commission staff issued Emergency Permit 5-09-068-G to Sean Hitchcock for emergency work at the project site (6400 E. Loynes Drive) described as:
Import 1,000 cubic yards of clean fill dirt to create a minimum six-inch thick dirt cap over an area no larger than 50,000 square feet to cover exposed trash in order to prevent methane release, per orders to comply issued by California Integrated Waste Management Board (Inspection Report, File No. 19-AK-5003 dated 3/26/2009) and South Coast Air Quality Management District (Case No. D-18289, 3/26/2009).
The site is an old dump that had been disturbed by unpermitted grading that occurred on March 19 and 20, 2009. The emergency permit was issued to allow the applicant to take immediate action to mitigate elevated methane levels (up to 7700 ppm) detected at the site by the South Coast Air Quality Management District. The applicant proceeded to construct a cap on the dump with imported fill dirt following the issuance of the emergency permit.
A condition of Emergency Permit 5-09-068-G required the applicant to apply to the City for the follow-up permit. On April 28, 2009, the applicant filed an application for a local coastal development permit with the City of Long Beach Department of Development Services. The City’s Notice of Public Hearing for Local Coastal Development Permit No. 0904-15 identifies the site as being in the appealable area of the coastal zone.
On October 12, 2009, the City of Long Beach Zoning Administrator held a public hearing and approved Local Coastal Development Permit No. 0904-15 to allow the import of 1,000 cubic yards of soil to re-establish and maintain the cap over the existing landfill (in response to Coastal Commission Emergency Permit 5-09-068-G), and to allow weed abatement to comply with a Fire Department order.
The decision of the Zoning Administrator was appealed to the City Planning Commission by several persons because the local coastal development permit did not include a condition requiring any restoration or revegetation of the project site.
On December 3, 2009, the Planning Commission held a public hearing and approved Local Coastal Development Permit No. 0904-15 with conditions (Exhibit #3). The appeals were denied, but the Planning Commission added Special Condition Ten, which states;
10. The applicant shall comply with a remediation plan to be prepared by staff and submitted to the Planning Commission for consideration within 90 days.
The Planning Commission’s decision was not appealable to the Long Beach City Council...
...STAFF RECOMMENDATION ON SUBSTANTIAL ISSUE
The staff recommends that the Commission determine that a substantial issue exists with respect to the grounds for the appeal regarding conformity of the project with the City of Long Beach Local Coastal Program and with the public access policies of the Coastal Act, pursuant to Public Resources Code Sections 30625(b)(2) and 30603(b)...
FINDINGS AND DECLARATIONS FOR SUBSTANTIAL ISSUE
The Commission hereby finds and declares:
A. Project Description
The vacant 9.38-acre project site, situated between Loynes Drive and the north bank of Los Cerritos Channel (Alamitos Bay) in southeast Long Beach, is part of an old landfill operation (refuse dump) that filled coastal marshland in the 1940s and ‘50s (Exhibit #2). The top layer of the landfill was disturbed by unpermitted grading that occurred on March 19 and 20, 2009. That unpermitted grading altered the topography and removed most of the vegetation from the site. Apparently, the grading also exposed the old dump. Commission staff issued an emergency permit on April 9, 2009 to allow the applicant to take immediate action to mitigate elevated methane levels (up to 7700 ppm) detected at the site by the South Coast Air Quality Management District (Exhibit #3). Following the issuance of the emergency permit, the applicant constructed a new cap on the dump using 1,000 cubic yards of imported fill dirt.
The subject of this appeal, Local Coastal Development Permit No. 0904-15, is an after-the-fact approval for weed abatement and for the import of 1,000 cubic yards of soil to construct a new cap on the surface of the old dump. The project site is Subarea 23 of SEADIP (Southeast Area Development and Improvement Plan), a specific plan that covers the southeast portion of the City of Long Beach.
B. Factors to be Considered in Substantial Issue Analysis
Section 30625 of the Coastal Act states that the Commission shall hear an appeal of a local government action unless it finds that no substantial issue exists with respect to the grounds on which the appeal has been filed. The term "substantial issue" is not defined in the Coastal Act or its implementing regulations. Section 13115(b) of the Commission’s regulations simply indicates that the Commission will hear an appeal unless it finds that the appeal raises no significant question as to conformity with the certified LCP or there is no significant question with regard to the public access policies of Chapter 3 of the Coastal Act. In previous decisions on appeals, the Commission has been guided by the following factors.
1. The degree of factual and legal support for the local government’s decision that the development is consistent or inconsistent with the Coastal Act;
2. The extent and scope of the development as approved or denied by the local government;
3. The significance of the coastal resources affected by the decision;
4. The precedential value of the local government’s decision for future interpretations of its LCP; and,
5. Whether the appeal raises local issues, or those of regional or statewide significance.
Even when the Commission chooses not to hear an appeal, appellants nevertheless may obtain judicial review of the local government’s coastal permit decision by filing petition for a writ of mandate pursuant to Code of Civil Procedure, Section 1094.5. Staff is recommending that the Commission find that a substantial issue exists for the reasons set forth below.
C. Substantial Issue Analysis
As stated in Section III of this report, the grounds for appeal of a coastal development permit issued by the local government after certification of its Local Coastal Program (LCP) are specific. In this case, the local coastal development permit may be appealed to the Commission on the grounds that it does not conform to the certified LCP or the public access policies of the Coastal Act. Unless the Commission finds that the appeals do not raise a substantial issue regarding conformity with the certified LCP or the public access policies of the Coastal Act, the Commission must review the permit application de novo.
In this case, staff recommends that the Commission determine that the appeals do raise a substantial issue with respect to the grounds on which the appeals have been filed regarding consistency with the certified City of Long Beach LCP. The certified LCP requires that open space and natural habitat areas shall be preserved and that the waters of Alamitos Bay be protected from polluted runoff. The following goals and policies, contained in the Open Space Element of the City’s General Plan, are equally weighted policies of the Land Use Plan (LUP) portion of the City’s certified LCP:
1. Goals: Open Space - Preservation of Natural Resources
b. To preserve and enhance the open space opportunities offered by the inland waterways of the city through improved access and beautification.
g. To preserve areas which serve as natural habitats for fish and wildlife species and which can be used for ecologic, scientific, and educational purposes.
h. To locate, define, and protect other beneficial natural habitats in and about the city.
5. Goals: Open Space – Shaping Urban Development
a. To maintain and enhance existing and potential open space areas which are important as links, nodes, and edges, or provide relief from urban built-form.
8. Policies: Open Space Node – Alamitos Bay & Recreation Park
Conserve and enhance Alamitos Bay – Recreation Park open space node by:
e. Improving the quality of the Bay waters by controlling all forms of possible pollution, both in Bay and in tributaries upstream;
h. Maintaining close surveillance over all proposed projects in the Bay area through the environmental review process;
i. Exerting design controls on proposed improvements in order to prevent degradation of the aesthetic environment;
The appeals contend that the project site should be recognized as containing wetlands and sensitive habitat, and that it is subject to the public trust. These assertions go right to the heart of the matter. The coastal development permit process should identify the impacts of the approved development on coastal resources, and then establish the limits on the scope of the approved development and require specific mitigation measures in order to protect open space and natural habitat as required by the certified LCP. The City’s local coastal development permit findings do not acknowledge the proposed project’s adverse impacts to coastal resources or attempt to explain how the adverse impacts will be minimized or mitigated. The City’s findings also do not provide an adequate degree of factual support for its conclusion that the approved development conforms with the certified LCP and the public access policies of the Coastal Act.
The project site is open space, and the reports prepared for the applicant and the Los Cerritos Wetlands Trust support the assertion that the site contains wetlands and sensitive habitat. A report1 for the project site submitted by the Los Cerritos Wetlands Trust indicates that the site has significant biological value because of its characteristics and its proximity to the tidal channel and the adjacent salt marshes. The Los Cerritos Wetlands are about two hundred feet south of the project site, on the south side of the Los Cerritos Channel (Exhibit #2). While the project site is primarily upland (about 16 to 20 feet of fill covering former salt marsh), the report states that there are seasonal wetlands (vernal ponds) that form on lower elevations on the western side of the property. Hydric soils and least two species of native plants that are wetland indicators (Polypogon monspeliensis and Lepidium latifolium) have been documented on the site.2 The El Dorado Audubon Society and the report submitted by the Los Cerritos Wetlands Trust state that the open space is an important foraging area and refuge for several species of birds, including raptors, herons and egrets. Wildlife on the site also includes fence lizards and small mammals (squirrels, rabbits and rodents).
The local coastal development permit authorizes the removal of vegetation and the placement of 1,000 cubic yards of fill on the site, but lacks the provisions necessary to protect habitat and native vegetation on the site. The local coastal development permit also does not include adequate conditions to require the applicant to mitigate and/or restore any habitat destroyed as a result of the approved development. The local coastal development permit does not include any mitigation to protect the adjacent tidal areas from runoff and sediment that may erode from the site subsequent to the vegetation removal and grading. Even though the local coastal development permit contains Condition Ten that requires the applicant to “comply with a remediation plan to be prepared by staff”, the City has not put forward any such plan. The local coastal development permit’s lack of limits on the scope of the approved development and the lack of specific mitigation measures raises a substantial issue with respect to the grounds of the appeals.
Condition Ten raises a substantial issue as to its conformity with the certified LCP because it is vague and unclear. The condition does not define what needs to be remediated. Is it the dump and the methane gases, or the habitat and vegetation that must be remediated? The condition includes no details, standards or parameters. The condition should, at a minimum, describe what types of native plants must be planted on the site (and when) in order to mitigate...
[footnotes] 1 Comments on Illegal Development and Retroactive Permit to Remediate at 6400 Loynes Drive, Long Beach, by Travis Longcore, Ph.D. and Catherine Rich, J.D., M.A., Land Protection Partners, 10/8/2009.
2 Biological Resources Evaluation and Jurisdictional Waters Delineation for APN 7237017006, by Ty M. Garrison, SWCA Environmental Consultants, 5/28/2009. [end footnotes]
...the loss of ground cover resulting from the approved development and to prevent erosion and runoff. The LCP requires that open space and natural habitat areas be preserved and that the waters of Alamitos Bay be protected from runoff. Given the absence of a detailed and enforceable habitat protection and restoration plan, the appeals raise a substantial issue regarding the conformity of the local action with the policies of the certified LCP.
Additionally, the local coastal development permit is unclear as to whether the City’s approval of weed abatement is solely retroactive, or whether the permit is authorizing future episodes of vegetation removal activities on the site.
Either way, the permit does not include the provisions necessary to protect native vegetation, wildlife and water quality from the adverse impacts of vegetation removal. Thus, a finding of substantial issue will help to clarify the scope of the approved development, and whether a coastal development permit must be obtained for any additional vegetation removal.
Another substantial issue is the conformity of the development with the LCP designation of the property. The certified City of Long Beach LCP designates the project site as a restoration site, specifically an 8.3-acre brackish pond. The project site falls within Subarea 23 of SEADIP (PD-1 - Southeast Area Development and Improvement Plan), a specific plan that covers the southeast portion of the City of Long Beach. The standards for SEADIP Subarea 23 (a component of the certified LCP) are set forth as follows:
SEADIP Subarea 23
a. The two wetland concepts generally outlined shall include a 8.3 acre brackish pond on Area 23 provided that the Executive Director of the California Coastal Commission determines (i) in addition to the setback for buffer, the elevation and setbacks between development and wetland edge shall be sufficient to ensure stability during liquefaction events caused by the maximum credible earthquake; (ii) that the location and operation of the proposed wetland are acceptable to the Regional Water Quality Control Board, the State Department of Health and to the Local Mosquito Abatement District.
b. If approval from these agencies results in reductions to the net size of the proposed wetland, restoration at this site shall only occur if the remaining area is sufficient to create a wetland at least the same size as the existing brackish pond at the Marketplace.
The LCP policy for SEADIP Subarea 23 refers to the brackish pond at the Marketplace because the restoration of SEADIP Subarea 23 is linked to the development plan for SEADIP Subarea 25. The brackish pond at the Marketplace is in SEADIP Subarea 25, which is an uncertified portion of the Los Cerritos Wetlands area located south of Second Street. An uncertified section of SEADIP called for filling the pond at the Marketplace (and other wetlands) and the construction of a business park in SEADIP Subarea 25. SEADIP Subarea 23 is identified as the site for mitigating the filling of the pond and wetlands in SEADIP Subarea 25.
The issues raised by the appeals are even more substantial in light of the site’s designation as a site for a brackish pond. The development approved by the local coastal development permit does not conform with or carry out the provisions set forth for Subarea 23 of SEADIP. The question of whether the site, or a portion of the site, should be restored as a brackish pond, as vernal pond wetlands, or as an upland native plant garden is a substantial issue.
The Commission will address this substantial issue, and the other issues raised by the appeals, when it reviews the proposal de novo.
In conclusion, the Commission finds that the appeals raise a substantial issue with respect to the grounds on which the appeals have been filed regarding consistency with the certified City of Long Beach Local Coastal Program (LCP). The certified LCP requires that open space and natural habitat areas like the project site shall be preserved and that the waters of Alamitos Bay shall be protected from runoff. The local coastal development permit authorizes development that could adversely affect wildlife, wetlands, and the quality of the adjacent tidal waters. Given the absence of a detailed and enforceable habitat protection and restoration plan, the appeals raise a substantial issue regarding the conformity of the local action with the policies of the certified LCP. A de novo hearing will scheduled for a future Commission meeting.
