CA Coastal Comm'n Staff Informs City Hall That Coastal Development Permit IS Required To Create New Four Acre Parcel On North Side of 2nd St In SE LB Wetlands Swap/Land Exchange
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(November 13, 2009) -- LBReport.com has learned that CA Coastal Commission staff has informed City Manager Pat West by letter that a memo to the Mayor and City Council by Public Works Director Mike Conway (previously reported by LBReport.com) was incorrect in stating that a coastal development permit isn't required to create a four acre parcel (currently owned by LCW Partners, LLC, north of 2nd St./east of PCH and the "In N Out" Burger location) for conveyance to the City as part of a SE LB wetlands/open space exchange for city owned property.
Image part of Aug. 2009 city staff report
In a letter dated November 9, Coastal Commission Coastal Program Manager Gary Timm informs City Manager West (cc'd to city staffer Derek Burnham and City Attorney Robert Shannon):
"In the memo Mr. Conway asserts that a coastal development permit is not required to divide a property in order to convey to the City a four-acre portion of a larger lot located on the north side of Second Street. We must rebut that opinion, for it is incorrect." says
Mr. Timm's letter continues: "The proposed subdivision, or lot split as it is referred to in the memo, is a type of development that requires a coastal development permit. It would create a new lot. All divisions of land, except for one narrow exception discussed below, are considered development, including lot line adjustments. The lot split at issue here is a type of development that requires a local coastal development permit."
The Coastal Commission Nov. 9 staff letter is consistent with the position taken by the Los Cerritos Wetlands Land Trust in an October 2 letter to Mayor Foster and Councilmembers.
In his Nov. 9 letter, Coastal Program Manager Timm cites the following:
Development is broadly defined by Section 30106 of the Coastal Act, which states:
"Development" means, on land, in or under water, the placement or erection of
any solid material or structure; discharge or disposal of any dredged material or
of any gaseous, liquid, solid, or thermal waste; grading, removing, dredging,
mining, or extraction of any materials; change in the density or intensity of use of
land, including, but not limited to, subdivision pursuant to the Subdivision Map
Act (commencing with Section 66410 of the Government Code), and any other
division of land, including lot splits, except where the land division is
brought about in connection with the purchase of such land by a public
agency for public recreational use; change in the intensity of use of water, or
of access thereto; construction, reconstruction, demolition, or alteration of the
size of any structure, including any facility of any private, public, or municipal
utility; and the removal or harvesting of major vegetation other than for
agricultural purposes, kelp harvesting, and timber operations which are in
accordance with a timber harvesting plan submitted pursuant to the provisions of
the Z'berg-Nejedly Forest Practice Act of I973 (commencing with Section 45II). [emphasis in letter text]
The City of Long Beach certified LCP also defines land divisions as development, as follows:
21.15.790 Development
A. "Development" means:
1. The division of a parcel of land into two (2) or more parcels;
2. The construction, reconstruction, conversion, structural alteration, relocation or
enlargement of any structure;
3. Any mining, excavation, landfill or land disturbance; or
4. Any use or extension of the use of land.
B. This definition includes, but is not limited to:
1. Subdivision pursuant to the Subdivision Map Act (commencing with Section 66410
of the Government Code);
2. Any other division of land, including lot splits, except where the land division is
brought about in connection with the purchase of the land by a public agency for
public recreational use;
3. Change in the intensity of use of water, or of access thereto;
4. Construction, reconstruction, demolition, or alteration of the size of any structure,
including any facility of any private, public, or municipal utility; and
5. The removal or harvesting of major vegetation other than for agricultural purposes,
kelp harvesting, and timber operations which are in accordance with a timber
harvesting plan submitted pursuant to the Z'berg-Nejedly Forest Practice Act of 1973
(commencing with Section 4511).
C. As used in this Section, "structure" includes, but is not limited to, any building, road,
pipe, flume, conduit, siphon, aqueduct, telephone line and electrical power
transmission and distribution line.
The definition of development includes an exception for cases where a land division is brought
about in connection with the purchase of such land by a public agency for public recreational
use, but the City has not taken any steps to dedicate the property or use it for public
recreation. Therefore, the exception would not apply in this case.
The property subject to the proposed subdivision is located in part of the Los Cerritos
Wetlands area that is not part of the certified City of Long Beach LCP. Therefore, the required
coastal development permit for the development must be obtained from the Commission. The
Commission will review the proposed development during the permit process in order to
identify any potential adverse impacts to coastal resources. Please submit a completed
coastal development permit application to our South Coast District office in Long Beach.
Please call me or Charles Posner at (562) 590-5071 if you have any questions.
s/ Gary Timm
Coastal Program Manager
cc: Robert E. Shannon, City Attorney
Derek Burnham, City Planning Officer
In what may or may not be related to this development, an item is visible on the City Council's "closed session" agenda for November 17 under CA Gov't Code section 54956.8 "regarding a conference with the City's real property negotiator" (City Manager Pat West) on property with assessor's parcel numbers corresponding to the entire properties to be acquired from the LCW Partners, LLC and conveyed to the private entity by the City. The item indicates: "Under Negotiation: Price & Terms of Payment."
In August 2009, the slimmest possible Council majority voted to direct management to complete a property exchange (SE LB open space/wetlands for the City-owned Public Service Yard. (5-4: Yes: S. Lowenthal, DeLong, O'Donnell, Andrews, Lerch; No: Garcia, Schipske, Reyes Uranga, Gabelich). However, city staff declined finalize the transaction when it learned tthat the U.S. EPA had begun an action requiring the property owner to clean-up toxic (carcinogenic) PCBs found to be leaking from transformers on part of the property to be acquired by the City. City staff informed the Council by memo that out of prudence, and with City Attorney concurrence, the city wouldn't finalize the transaction during the pendency of the EPA ordered clean-up action.
Meanwhile, in an October 2, 2009 letter to Mayor Foster and Councilmembers, LCWLT President Ann Denison offered to work with City Hall to protect and preserve SE LB wetlands if the City applies for a Coastal Development Permit, is willing to comply with reasonable permit conditions and recognize LCWLT's expressed concerns. (LBReport.com coverage, including the LCWLT letter text, click here.)
Public Works Director Conway responded with a memo directed to the Mayor and Councilmembers (previously reported by LBReport.com) basically dismissing LCWLT's concerns regarding the four acre parcel and other issues.
In a related development, as a result of an item previously agendized by Councilwoman Gerrie Schipske and approved by the Council, a local representative of the U.S. EPA is scheduled to brief the City Council on the EPA action's action on the SE LB property during the Council's November 17 open, public meeting.
City management hasn't said, and Councilmembers haven't asked publicly, about city management's plans for use of the four acre parcel. However speculation has centered on whether it might be used to create a right turn lane from westbound 2nd St. to northbound PCH, providing traffic relief at the notoriously congested PCH/2nd St. intersection.
Traffic issues have been raised in connection with the proposed PCH/2nd development (Seaport Marina Hotel site) and could likely arise (again) in connection with an application expected to be [re]filed for a commercial development on Studebaker Rd. at Loynes Dr.
As previously reported by LBReport.com, on Oct. 20 the City Council (8-1, Schipske dissenting) authorized the use of eminent domain to take a strip of land along the southbound lanes of PCH approaching 2nd St to create an extra lane in that direction.
City Hall management says its ultimate plan is to have a state-funded locally-governed Wetlands Authority (a government body) purchase the wetlands at some point (no date has been set). The Wetlands Authority is currently without funds for the transaction, hasn't agreed to pay the City a price certain for the property or to complete such a transaction with the City by any date certain.
