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HomeMy WebLinkAboutZone Change 88-18 - WHITE HOLE AREA - Inland of PCH btwn Bea i LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The • CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Katherine E. Stone Richard K Terrian Margaret A. Sohagi Adams, Duque & Hazeltine Freilich, Stone, Leitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute: a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a 'wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain p-ocedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitter uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ("CDR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties; in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. 2 SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard, to be 'viably functioning" or "restorable" wetlands,V while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before Lj Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. The 1Q82 Department of Fish and Game Report, entitled 'Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 34411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River,.a large wetlands area flcurislied, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands3, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands.] (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's P;.anning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannahs Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 1.5, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a '%vbite hole" In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 from Beach Boulevard to the Santa Ana River.J In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix Q. The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); , 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a 'white hole" because, lacking certification, it appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilities: of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parries own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transpertation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map based upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltrans Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (area 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to BrookhL rst Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to extend the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have soLght to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. °Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option nins into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several parcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal cependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department I Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-O-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned M'H-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation "which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is-Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acresy proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 15.3 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned MI-A-O-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Gzrne, in its report, deemed the 8.3 acres degraded wetlands. The area has remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezoning; and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay). The other is smaller and zoned MI-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space ir. the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned MI-A-O (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1933. The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." (Appendix C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal Zone) suffix to the existing zoning designations. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for the power plant. Existing zoning is MLr0-FP2 (Industrial District combined with Oil .Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 8 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; Fist English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the 0 Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceedings on whether a regulatory taking had actually occurred, i.e., 'whether the ordinan:a at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp. 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)J J As an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) _ ----' A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v, San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowne: claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and Hill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony H v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, egg Government Code § 66601; also see Deltona Corporation v. United States (1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Ste,*nberg, et al., Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts Since the court's ruling in First English. In light of the state and federal legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal.App.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating Facilities. (The other uses are set forth at p. 5 above.) The economic viability of these uses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inver7ary Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir.' 1987) 830 F.2d 977, amended opinion 841 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1023.) b. Does the Zoning 'As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as applied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a caking. (See, e.g., Village of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [750/v diminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc tactual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) 12 Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.) Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cert. denied (1989) _ U.S. _, 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Ca1.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Cal.App.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS Suh-Question No. ! What Are the Potential Legal Consequences or Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories discussed in this opinion. Such lawsuits are often well financed and expensive to defenc.. The landowners may try to first exhaust their administrative remedies and set up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except iri very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would no-: appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the tra.ilcr park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because ai a whole the Mills property has many economically viable uses, both existing and perrtvtted. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may wish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industrial development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue A/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Cal.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 987].) When, as here, the claim is made that the regulation has significantly See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (N.J. 1978) 391 A.2d 1265. J "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.p The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington V. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and fe:deral constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. Ciry of Livermore (1976) 18 Cal.3d at p. 593.) Therefore, there would be no cause: of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied -.s not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County, of Mann (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Arnel Bevelopment Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) ' 11 If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 • As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Cal.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown -by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 s (1975) 15 ^al.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classifications against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one par.-el and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective "wetlands" areas we believe that the proposed zoning would be defensible -,Lgainst an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive at a consensus as to the uses of the Mills/Piczrelli/Edison properties. I. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" ("TDR's"). • TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104. See also Dehona Corp. i% U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such [TDR's) mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of ref;ulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104; City of Hollywood v. Hollywood, Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Takings" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesw: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically L In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Cal.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing, must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The bearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. The City may charge a fee to cover the cost of the hearing. 3. Specific Plan/Redevelopment. for the Area. The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. 21 APPENDIX A APPENDIX A ' F O/V F.TLe: FO R PUeLZC RCV3: FE6J IN THE C rTy C LERKS OFF-r C-E . LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Katherine E. Stone Richard R Terz an Margaret A. Sohagi Adams, Duque & Hazeltine Freilich, Stone, Leitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 i i LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute a cause of action for a taking pursuant to the Fifth Amendment to the United States Canstitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitut-onal claim if the facts showed that the zoning: • was applied to property that is not, in fact, a "wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ('TDR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. is . 2 • SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard, to be "viably functioning" or "restorable" wetlands, while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before U Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. L The 1Q82 Department of Fish and Game Report, entitled "Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River, a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands. (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nonJegraded wetlands (none in study area); (2) degraded but viably functioning wetlands, (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's P:.anning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savanna:i Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 1.5, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a 'white hole" 3J In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and ' definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal fact definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 from Beach Boulevard to the Santa Ana RiverY In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix C). The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a 'white hole" because, lacking certification, it appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilities• of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map based upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltrans Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (z.rea 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to Brookhurst Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres, were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to exten 3 the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have sought to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. "Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several p�.rcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department J Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-O-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned ME-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation "which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is,Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acres5i proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 153 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Game, in its report, deemed the 8.3 acres degraded wetlands. The area has remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezoning and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay). The other is smaller and zoned MI-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned MI-A-O (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1983. The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." (Appendic C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil ProdL etion and Floodplain Districts). The proposed zoning would only add a CZ (Coastal ;'one) suffix to the existing zoning designations. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for the power plant. Existing zoning is MID-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 8 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, USA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL. QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceedi.-igs on whether a regulatory taking had actually occurred, i.e., "whether the ordinana° at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp. 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed Mai, 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property, (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)6 J As an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) -- A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula r1sta, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowne; claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony H v. Coastal Commission of the State of California (1994) 151 Cal.App.3d 1107.) In Beach Colony 11, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, = Government Code § 66601; also see Deltona Corporation v. United States (1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg; et at, Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts since the court's ruling in First English. In light of the state and federal legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal.,%pp.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability of these Lises is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inverrruy Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimienro Ranch Co. v. San Luis Obispo County (9th Cir: 1987) 830 F.2d 977, amended opinion MI. F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1023.) b. Does the Zoning 'As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as appNed to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1973) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., Village of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [75% diminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc factual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) 1� Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning., Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cent. denied (1989) _ U.S. _, 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 CalApp.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc. v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS Suh-Ques,ion No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories discussed in this opinion. Such lawsuits are often well financed and expensive to defend The landowners may try to first exhaust their administrative remedies and set up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except in very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would not appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the trailer park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permived. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may vrish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industrial development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. • While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue A/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application)., The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Cal.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 9871.) When, as here, the claim is made that the regulation has significantly See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (NJ. 1978) 391 A.2d 1265. J "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.?1 The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington v. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner S of procedural and substantive due process, and equal protection of the law under the state and federal constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc v. City of Livermore (1976) 18 Cal.3d at p. 593.) Therefore, there would be no cause. of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County of Mann (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Amel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) L If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Cal.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (NeLson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) 1 There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarlv situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classif',cations against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one parcel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Ca1.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective "wetlands" areas we believe that the proposed zoning would be defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive at a consensus as to the uses of the Mil ls/Picarelli/Edison properties. 1. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" ("MR's"). TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York 0978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such [TDR's] mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 144; Citv of Hollywood v. Hollywood, Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Takings" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesu/: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically • L/ In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Ca1.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. The City may charge a fee to cover the cost of the hearing. 3. Specific Plan/Redevelopment for the Area. The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. 21 APPENDIX A APPEND=X A ' OIV FX- Lu- FOR PUBLIC RqV3: Et%-) = N THE Crry C LERKS OFF-r CE . LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Katherine E. Stone Richard R. Terzian Margaret A. Sohagi Adams, Duque & Hazeltine Freilich, Stone, L.eitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute: a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a 'wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conserva:ion does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ("MR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. 2 SLJIiSID1ARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third parry decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard,) to be "viably functioning" or "restorable" wetlands,'/ while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before >J Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. 11c 1082 Department of Fish and Game Report, entitled 'Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River,.a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A_) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetland, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands. (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functionng as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate: habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's Planning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 15, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a 'white hole" 21 In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal A.t definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 s from Beach Boulevard to the Santa Ana River.J In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix Q. The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a "white hole" because, lacking certification, it appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilitie!. of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map bared upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltram Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (z:rea 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to Brookhurst Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres, were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to extend the state freeway system down Beach Boulevard and along the coast. Although these plan, eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have sought to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. "Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several parcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residentia. agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department )f Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-O-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned MH-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation 'which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acresy proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 15.3 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Game, in its report, deemed the 8.3 acres degraded wetlands. The area has remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezonini. and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay). The other is smaller and zoned M 1-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned M 1-A-O (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1983. The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." (Appendi;c C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 or, Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal "bone) suffix to the existing zoning designations. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for the power plant. Existing zoning is MLrb-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a M1-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 0 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; Fir.;t English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 432 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceedings on whether a regulatory taking had actually occurred, i.e., 'whether the ordinance at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulatiotts." (Id. at pp. 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)§/ J A, an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) — A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowne: claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony 11 v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for • fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, egg Government Code § 66601; also see Deltona Corporation v. United States (..981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg, et aL, Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts since the court's ruling in First English. In light of the state and federal legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal..kpp.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability of these -sses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inverrmy Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimiewo Ranch Co. v. San Luis Obispo County (9th Cir: 1987) 830 F.2d 977, amended opinion E.41 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1021,.) b. Does the Zoning 'As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as applied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., rillage of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [75% Jiminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, *2 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc factual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) 1' Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.] Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cent. denied (1989) — U.S. _, 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Ca1.App.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc. v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS Suh-Question No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories c.iscussed in this opinion. Such lawsuits are often well financed and expensive to defend. The landowners may try to first exhaust their administrative remedies and set up a "rips" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except in very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by Our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would not appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the trailer park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permitted. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may Nrish to enhance its position in this respect by allowing some transfer of developmert rights from the wetlands to the property zoned for commercial, residential, or industrial development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue 4/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guirume, 197 Cal.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 987].) When, as here, the claim is made that the regulation has significantly J See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (NJ. 1978) 391 A.2d 1265. J "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.p The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (lltl-. Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington V. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and federal constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore (1976) 18 Cal.3d at p. 593.) Therefore, there would be no cause: of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County of Marin (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) 1-01 If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Ca1.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily -Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classif cations against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular ;piece of property, a cause of action might be stated if the zoning were applied to one parcel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the: respective 'wetlands" areas we believe that the proposed zoning would be defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, th,; City may decide to institute a planning alternative in an attempt to arrive at a consem;us as to the uses of the Mil ls/Picare Ili/Edison properties. 1. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" ("MR's"). TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such (TDR's] mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104; Citv of Hollywood v. Hollywood, Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Takings" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesu/: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically 1V In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Cal.App.3d 642, the appellate court indicated that taking claims could be fairly beard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. is g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. The City may charge a fee to cover the cost of the hearing. 3. Specific Plan/Redevelopment. for the Area. The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. • 21 APPENDIX A APPEND= X A ' F ON FxL- &: FOR P(AeLrC RQ7V-tE: (,s-) IN THE CrTy CLERKS OFFICE , LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The • CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Kuthenne E. Stone Richard R Terzian Margaret A. Sohagi Adams, Duque & Hazeltine Freilich, Stone, Leitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 t i LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute° a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a 'wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ('TDR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. 2 SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard,) to be "viably functioning" or "restorable" wetlands,l/ while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before U Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. The 1()82 Department of Fish and Game Report, entitled "Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River, a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach :-'oastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands..) (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's PhLnaing Commission, Fred Worthley, Regional Manager for Region 5 of the California: Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service a-nsus indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 15 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a 'White hole" 21 In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Departmer.t of Fish and Game, are attached as Appendix B. 4 from Beach Boulevard to the Santa Ana RiverY In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix Q. The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) The area is referred to as a 'white hole" because, lacking certification, it appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilitie! of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map bated upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltrans Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (area 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to Brookhu.-st Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to extend the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have souf;ht to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiatec which could result in Mills being granted a right of first refusal of an offer by Caltrars to sell the property. "Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several pa•cels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department J Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-0-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned ME-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation 'which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is.Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acresv proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 15.3 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Gilme, in its report, deemed the 8.3 acres degraded wetlands. The area has remain(d undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezonink; and is not considered wetlands by the Department of Fish and Game. Two of these pz.rcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay) The other is smaller and zoned MI-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned M1-A-0 (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Departm,;nt of Fish and Game's report indicates that 15.2 acres of the property are degraded viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of • which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-O-FP2 (an industrial zone allowing oil production) since 198.). The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the prese it generating plant. The City's staff report on the subject notes that "the Coastal An would not normally allow development of the . . . property," but does permit the develcpment of energy production facilities if "no other alternative site is available." (Appendix C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal Zone) suffix to the existing zoning designations. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for tie power plant. Existing zoning is ML,0-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District cor,ibined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 8 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. It is cu;-rently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from th: date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceed ngs on whether a regulatory taking had actually occurred, i.e., "whether the ordinance at issue actually denied appellant all use of its property, or whether the county might a-old the conclusion that a compensable taking had occurred by establishing that the den-al of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp.. 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating; "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.# J As an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowner claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony 11 v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, a= Government Code § 66601; also see Deltona Corporation v. United States ( 1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg, et aL, Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarct y. Their precise place in the hierarchy has not yet been determined by the courts :since the court's ruling in First English. In light of the state and federal legislati-)n on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal App.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability of these uses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inver-ary Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimie.ito Ranch Co. v. San Luis Obispo County (9th Cir.' 1987) 830 F.2d 977, amended opinion 841 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1023.) b. Does the Zoning As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as ap glied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., <rllage of Euclid Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [751�'9 diminution in value); Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 4,'7 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc :'actual inquiry" and depends on an analysis of a number of factors such as the character- of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulatiol. (Penn Central, 438 U.S. at p. 125.) 1' Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.) Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cert. denied (1989) U.S. , 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Ca1.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Ca1.App.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Ina v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also lentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS Sub-Question No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories Jiscussed in this opinion. Such lawsuits are often well financed and expensive to defenc. The landowners may try to first exhaust their administrative remedies and set up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except it very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli :)roperties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would no, appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the tra.ilcr park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion o-* this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permitted. A landowner may not parcel up his property to create a takings claim. (See Penr, Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 481) U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may wish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industr al development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue L/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Ca1.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 9871.) When, as here, the claim is made that the regulation has significantly J See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (NJ. 1978) 391 A.2d 1265. 1� J "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of 3 permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.p The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington V. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Questic n No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and f(.deral constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § IS83) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore (1976) 18 Ca1.3d at p. 593.) Therefore, there would be no caus,; of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County of Mann (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Amel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) L If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Ca1.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classifications against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one pa-cel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective "wetlands" areas we believe that the proposed zoning would be defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive at a consensus as to the uses of the Mills/Picarelli/Edison properties. 1. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" (`MR's"). TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitut:onal takings of private property. (Penn Central Transportation Co. v. City of New York ('1978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such FMR's) mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 144; City of Hollywood v. Hollywood Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Ta/dngs" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesw: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically IV In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Cal.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. The City may charge a fee to cover the cost of the hearing. 3. Specific Plan/Redevelopment for the Area. The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. AcquisitionfMitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. 21 APPENDIX A APPEND= X A ' F OAJ FZ- LE FO R PUBLIC RevXE (4-) = /V THE Crry CLERKS OF Fr cE. . LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Katherine E. Stone Richard K Terzian Margaret A. Sohagi Adams, Duque & Hazeltine Freilich, Stone, Leitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a "wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ('TDR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? i FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard,1 to be "viably functioning" or "restorable" wetlands,3/ while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before IJ Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. z The N82 Department of Fish and Game Report, entitled "Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable' wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River,.a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands.) (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's Planning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 15, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a "white hole" In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and ' definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard,) to be "viably functioning" or "restorable" wetlands,V while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before U Reach Boulevard pins, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. L The lQ82 Department of Fish and Game Report, entitled 'Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands • as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River, a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands.) (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's Planning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Cotincilman, City of Huntington Beach, dated March 15, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a "white hole" 3J In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 s from Beach Boulevard to the Santa Ana River.J In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix C). The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a 'white hole" because, lacking certification, it appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilities of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map based upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltrans Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (area 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to Brookhurst Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to extend the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have sought to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. gPicarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several parcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department A Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-O-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned MIH-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation 'which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acres5i proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 153 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Game, in its report, deemed the 8.3 acres degraded wetlands. The area has remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezoning and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay). The other is smaller and zoned MI-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned MI-A-O (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1983. The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." (Appendix C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal Zone) suffix to the existing zoning designations. 17he other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for the power plant. Existing zoning is MLO-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 8 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix C). The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was ivalued at a fair market value of $7,500 an acre. 9 • i The restoration project has been carried out and is a remarkable success. It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that • if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceedings on whether a regulatory taking had actually occurred, i.e., 'whether the ordinance at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp.. 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)J As an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) --- A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowne: claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony 11 v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, = Government Code § 66601; also see Deltona Corporation v. United States (1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg, et al., Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts since the court's ruling in First English. In light of the state and federal legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal.App.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability of these uses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree • of Inverrary Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir.' 1987) 830 F.2d 977, amended opinion 841 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1023.) b. Does the Zoning 'As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as applied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., Village of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [75% diminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc factual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) s 12 Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.) Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cert. denied (1989) _ U.S. _, 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Ca1.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Ca1.App.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc. v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and lust v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 r SUBSIDIARY QUESTIONS Sub-Question No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories discussed in this opinion. Such lawsuits are often well financed and expensive to defend. The landowners may try to first exhaust their administrative remedies and set up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except in very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would not appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the trailer park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permitted. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may wish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industrial development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue§/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Ca1.App3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 987].) When, as here, the claim is made that the regulation has significantly J See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (N.J. 1978) 391 A.2d 1265. J "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 • diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.�W The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington V. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and federal constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore (1976) 18 Cal.3d at p. 593.) Therefore, there would be no cause of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. Count), of Marin (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) L/ f in I the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Cal.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A) classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' (Citation.]" (117 Cal.App.3d at p. 882.) 1 There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classifications against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one parcel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective 'wetlands" areas we believe that the proposed zoning would be defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive at a consensus as to the uses of the Mills/Picare Ili/Edison properties. 1. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" ("I'DR's"). TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such [MR's] mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104; Citv of Hollywood v. Hollywood Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Takings" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesiv: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically v In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Cal.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. The City may charge a fee to cover the cost of the hearing. I Specific Plan/Redevelopment.for the Area. The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. 21 APPENDIX A APPPAIDMX A ' F ON F6R PIA ig L Z C vrew = fv Tµe C' rry C LERK's OFFr C-E . ti 1 LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH Katherine E. Stone Richard R Terzian Margaret A. Sohagr' Adams, Duque & Hazeltine Freilich, Stone, L.eitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 (213) 444-7805 LEGAL QUESTION Does zoning property as Coastal Conservation within the coastal zone constitute a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a 'wetland"; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ("MR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. 2 t 1 1 SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of known facts and supposition~. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. Essentially, this opinion assumes the subject properties, all east of Beach Boulevard,l/ to be "viably functioning" or "restorable" wetlands,l/ while only a small portion of the properties west of Beach Boulevard has that status. In this connection, the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before v Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. The 108? t)epartment of Fish and Game Report, entitled 'Determination of the. Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 emptying into Newport Bay. Along this stretch of the Santa Ana River, .a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands.' (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's Planning Commission, Fred Worthley, Regional Manager for Region 5 of the California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 15, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a 'white hole" 3J In its report, the Department of Fish and Game notes that it "considers the Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 from Beach Boulevard to the Santa Ana River.J In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix C). The report's zoning recommendations are discussed below as they relate to each property. A majority of the property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; 6. maintaining or restoring dredged depths of channels and berthing areas; 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a 'white hole" because, lacking certification, it appeared blank on the City's LUP. 5 f The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilities of benefit to both coastal visitors and residents. (HBOC Article 929.) Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map based upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) Caltrans Property Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (area 1 and a portion of area 2, Appendix E); the second is a strip which runs along Pacific Coast Highway from the southeastern corner of the Edison property to Brookhurst Street (portions of areas 5 and 6, Appendix E). The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings to extend the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the property. Both Mills and Picarelli, the previous owners of the two sections of property, have sought to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. "Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several parcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action Boat Brokers. As noted above, it is outside of the Department if Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned RA-0-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. Another Caltrans parcel is outside the wetlands assessment. It is zoned MN-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation 'which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is Coastal Conservation. Mills Property Mills Land and Water owns approximately 23.72 acresy proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 15.3 acres are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production. This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish and Game figures total to 26.5 acres. 7 and Game, in its report, deemed the 8.3 acres degraded wetlands. The area has remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezoning and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone overlay). The other is smaller and zoned Ml-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned M1-A-0 (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1983. The proposed zoning is M2-0-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." (Appendix C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal Zone) suffix to the existing zoning designations. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage tanks for the power plant. Existing zoning is MLrO-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. 8 Picarelli Property Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning wetlands, and 0.6 acres as restorable wetlands. City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The report recommended that the State Coastal Conservancy allocate funds not to exceed $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ANALYSIS LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. 825; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary taking"). The Supreme Court remanded the matter to the state courts for further proceedings on whether a regulatory taking had actually occurred, i.e., "Whether the ordinance at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp, 2384-2385.) On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)J As an independent ground for its decision, the court held that the ordinance imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? Preservation of functioning and restorable wetlands has been held to be a valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Cal.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal Commission (1981) 119 Cal.App.3d 228; Public Resources Code § 30240.) A key factor is whether the property zoned Coastal Conservation is in fact a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Cal.App.3d at p. 497; Public Resources Code § 30233.) In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Cal.App.3d 557, 572, the landowne. claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (Id. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App.3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected wetland. (Beach Colony H v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (Id.' at p. a 108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App.3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Tieir continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 t Francisco Bay, egg Government Code § 66601; also see Deltona Corporation v. United States (1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg, et al., Wetlands and Real Estate Development Handbook, pgs. 1-3 and 4.) By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts since the court's ruling in First English. In light of the state and federal legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face" Deprive Landowners of All or Substantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal.App.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability of these uses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inverrary Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir.' 1987) 830 F.2d 977, amended opinion 841 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 F.2d 1023.) b. Does the Zoning 'As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as applied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., tillage of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [75% diminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc factual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) 1' Given certain facts, application of the Coastal Conservation zoning to a particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; Kinzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.) Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cent. denied (1989) U.S. , 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) The analysis of a takings claim under the California Constitution is substantially the same as the analysis under the Fifth Amendment to the United States Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Ca1.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Cal.App.3d 699.) J See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc. v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS Sub-Question No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and perhaps individual City officers and employees, based on some or all of the legal theories discussed in this opinion. Such lawsuits are often well financed and expensive to defend. The landowners may try to first exhaust their administrative remedies and set up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except in very unusual situations, liability will not be imposed on cities for zoning mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would not appear to give rise to a takings, due process, or equal protection claim. Mills Property The Mills property includes several large areas with existing economic uses (the trailer park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permitted. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may wish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industrial development. 14 For the same reasons, application of the zoning to the Mills property also would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue 1/ These kinds of cases can be very expensive to try and the outcome in the trial court is far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Cal.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins.' (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 9871.) When, as here, the claim is made that the regulation has significantly J See Just v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (N.J. 1978) 391 A.2d 1265. v "Meaningful" application has been interpreted to mean one that is not overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.p The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington v. Sonoma County (9th Cir. 1987) 834 F.2d 1488). Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and federal constitutions, and claims for damages under the Civil Rights Act (42 U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. (Hom v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore (1976) 18 Ca1.3d at p. 593.) Therefore, there would be no cause of action for violation of procedural due process based on adoption of zoning. 2. Substantive Due Process. Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County of Marin (9th Cir. 1989) 872 F.2d 834, 836.) Spot zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Amel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) 10/ If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Cal.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Fates v. Yolo County (1986) 477 U.S. 340.) 3. Equal Protection. The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. 10250; see also Pennell v. City of San Jose (1988) 485 U.S. 1; Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) There is a general principle that similarly situated properties may not be unjustly discriminated against by the government. (Court House, 117 Cal.App.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "bow the singling out of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Ca1.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classifications against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one parcel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective "wetlands" areas we believe that the proposed zoning would be defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive at a consensus as to the uses of the Mills/Pi carelli/Edison properties. 1. Transfer of Development Rights. A frequently applied concept is that of "transfer of development rights" ('TDR's"). TDR's have been recognized by the United States Supreme Court as a means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such [TDR's] mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of I-DR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 by permitting a greater than normal intensity or density of development on the "receiving" property. Key elements of developing a TDR program include: a. identification of the "sending" zone properties; b. determining the amount of development that can be transferred from the "sending" zone properties; C. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104; City of Hollywood v. Hollywood, Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation And 'Takings" Claims. The following administrative claims procedure should be incorporated into the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted uses: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically v In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 Cal.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. • g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. i. -The City may charge a fee to cover the cost of the hearing. 3. Specific Plan/Redevelopment,for the Area The City may also wish to consider adopting a redevelopment plan or a specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay: The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should be explored as permitted uses within the Coastal Conservation zone. A provision for 'other similar uses' could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment • plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. CONCLUSION This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. 21 APPENDIX A )qppe1Vj)TX A ' F ON FZ- LF- FaR P(4eLZC ReVXrE (4-) = N THE CrTY CLERKS �FFrCfi . 1 - 1 1 LEGAL OPINION ON COASTAL CONSERVATION ZONING Prepared For The ' CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH 1 1 ' Katherine E. Stone Richard R. Terzian Margaret A. Sohagi Adams, Duque & Hazeltine ' Freilich, Stone, Leitner & Carlisle 523 West Sixth Street 11755 Wilshire Boulevard, Suite 1230 Los Angeles, California 90014 Los Angeles, California 90025 (213) 620-1240 ' (213) 444-7805 1 1 1 1 LEGAL QUESTION ' Does zoning property as Coastal Conservation within the coastal zone constitute a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? SUMMARY ANSWER As applied to a particular parcel, the zoning could give rise to a constitutional claim if the facts showed that the zoning: • was applied to property that is not, in fact, a '%vetland'; • deprived the owner of all viable economic use of his property without justification; or • was impermissibly discriminatory. tThe zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because: • preservation of wetlands serves a legitimate governmental purpose related to the public health, and • the zoning, on its face, permits some use of the property. ' To reduce potential exposure to liability, the City should consider adopting certain procedural and substantive changes to the zoning ordinance. An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the ' permitted uses and the designation as wetlands. The City should also consider adopting a 'Transfer of Development Rights" ("'TDR") program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties). Other planning concepts, such as a specific plan, may also be appropriate for the subject properties. ' 2 S SUBSIDIARY QUESTIONS 1. What are the potential legal consequences of rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? 2. What is the likelihood that such zoning would expose the City to liability? 3. What other constitutional claims might be raised? 4. What measures might the City take to reduce any potential exposure ' to liability? FACTUAL BACKGROUND This opinion summarizes relevant law and applies it to a combination of ' known facts and suppositions. Any opinion in this area of the law is necessarily dependent on the future perception of facts by a third party decision maker and is to that extent uncertain. ' In preparing this opinion we have considered the views expressed by the City Attorney in her February and March 1989 memos, and the March 15, 1989 letter ' of Shute, Mihaly and Weinberger. We have also considered facts which may not have been fully ascertained when those memos and letter were written, and court decisions handed down since then. ' Essentially, this opinion assumes the subject properties, all east of Beach Boulevard, to be 'viably functioning" or "restorable" wetlands,2/ while only a small portion of the properties west of Beach Boulevard has that status. In this connection, ' the City might consider retaining an expert to render an opinion as to the wetlands status of the coastal area east and west of Beach Boulevard. Early surveys of the Huntington Beach area reflect that the Santa Ana River, in its natural state, meandered along the California coast for several miles before ' I/ Beach Boulevard runs, generally, north and south. The subject properties are generally east (down coast) from Beach Boulevard. tJ The 1982 Department of Fish and Game Report, entitled "Determination of the Status of the Huntington Beach Wetlands," attached as Appendix A, considers degraded but 'viably functioning wetlands" to be those historic wetlands that "provide habitat value to avifauna" (Appendix A, p. 6), and degraded but "restorable" wetlands as wetlands which "major restoration efforts would not be required to restore and enhance wetland values." (Appendix A, pp. 2 and 21-22, Public Resources Code § 30411(b)((1).) 3 1 , 1 emptying into Newport Bay. Along this stretch of the Santa Ana River, a large wetlands area flourished, the remnants of which still exist today. Much of the area lies below sea level and standing water may be observed at some locations. The California Department of Fish and Game, at the request of the City of Huntington Beach ("City"), analyzed the area in 1979 and presented the City with a preliminary analysis in early 1980, which was finalized in 1982. (See Appendix A.) The ' Fish and Game Report examines a 162.6 acre study area within the City of Huntington Beach Coastal Zone bordered by Beach Boulevard, Pacific Coast Highway, the Santa Ana River, and the Orange County Flood Control Channel. The study area also ' includes the small area bordered by the Flood Control Channel, Newland Street and the fuel storage facility, and a small area west of Beach Boulevard. The report concludes that 149.9 acres in the study area are historic wetlands, and the remaining 12.7 acres adjacent to Pacific Coast Highway are historically uplands.) (Appendix A, Figure 2.) The report classifies the historical wetlands as either (1) nondegraded wetlands (none in study area); (2) degraded but viably functioning ' wetlands (114.7 acres in study area); or (3) historic wetlands which are no longer viably functioning as wetlands (35.2 acres in study area). Approximately 21.9 acres of the latter category are classified as "restorable." (Appendix A, Figure 2.) The report also notes that the viably functioning wetlands provide high and moderate habitat value for wetlands birds, except for a .8 acre parcel owned by the City ' of Huntington Beach. Both Belding's Savannah Sparrow, a bird listed on the state endangered species list, and the California Least Tern, listed on both the state and federal lists, are known to occur in the wetlands. In his February 22, 1989 letter to the City's Planning Commission, Fred Worthley, Regional Manager for Region 5 of the ' California Department of Fish and Game, noted that the 1986 U.S. Fish and Wildlife Service census indicated that ten percent of the Orange County population of Belding's Savannah Sparrow resides in the Huntington Beach wetlands. The U.S. Fish and Wildlife Service has not prepared a wetlands map of the area, but has noted that the map prepared by the Department of Fish and Game is ' "appropriate and sufficient." (Letter of Nancy M. Kaufman, Field Supervisor, U.S. Fish and Wildlife Service to Peter Green, Councilman, City of Huntington Beach, dated March 15, 1989.) The California Coastal Commission has also recognized the importance of the wetlands resource this area offers by refusing to certify the Coastal Land Use Plan ("LUP") the City adopted for the area in November 1982. This created a 'white hole" 2/ In its report, the Department of Fish and Game notes that it "considers the ' Coastal Act definition of 'wetlands' to be compatible with" the federal system and definition. (Appendix A, p.10.) The U.S. Fish and Wildlife Service definition, the Coastal Act definition, and a definition of "degraded wetlands" established by the Department of Fish and Game, are attached as Appendix B. 4 1' 1 from Beach Boulevard to the Santa Ana River.11 In June 1986, the City Council adopted a revised LUP for the white hole area that was certified by the California Coastal Commission in April 1987. The LUP, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial ' Energy Production, and 17.0 acres as Industrial Energy Production/Conservation. The subject properties are designated Conservation in the LUP, except as discussed below. At the direction of the Planning Commission and City Council, the City's Department of Development Services prepared a report with background information and zoning recommendations dated February 7, 1989. (Appendix C). The report's zoning recommendations are discussed below as they relate to each property. A majority of the ' property is proposed to be zoned CC-CZ-FP2 or "Coastal Conservation." The Coastal Conservation zone implements the LUP designation of open space conservation and provides for the protection, maintenance, restoration, enhancement of wetlands and environmentally sensitive habitat areas. (Huntington Beach Ordinance Code (HBOC) Article 969.7.) The proposed zone also contains a "CZ" suffix which indicates that the property is located within the City's Coastal Zone. (HBOC Article 969.9.) Permitted ' uses in this zone include: 1. new or expanded energy and coastal-dependent industrial facilities; 2. diking, dredging, or filling for the purpose of habitat restoration; ' 3. maintenance and expansion of flood control facilities (if such activities do not require the draining of wetlands); 4. mineral extraction, including sand for beach restoration (except in ' environmentally sensitive areas); 5. pedestrian trails and observation platforms for passive nature study; ' 6. maintaining or restoring dredged depths of channels and berthing areas; ' 7. creation of entrance channels for boating facilities in wetlands areas (if created in conjunction with a restoration program); and 8. nature study, aquaculture, or similar resource dependent activities. These uses parallel those specified in the California Coastal Act. (Public Resources Code § 30233.) J The area is referred to as a 'white hole" because, lacking certification, it ' appeared blank on the City's LUP. 5 The report also proposes zoning one parcel Visitor Serving Commercial (VSC-CA-FP2), which would permit hotels, motels, restaurants, service facilities and facilities of benefit to both coastal visitors and residents. (HBOC Article 929.) ' Several parties own land in the wetlands area, as described by the Department of Fish and Game. These include the State of California Department of Transportation (Caltrans), the Mills Land and Water Company (Mills), Southern ' California Edison (Edison), Ms. Daisy Picarelli (Picarelli), the City of Huntington Beach (City), and the Huntington Beach Wetlands Conservancy (Conservancy). (See ownership map based upon a 1989 title search attached as Appendix D.) The proposed zone changes affect all of the property owners except the City. (Appendix E.) ' Caltrans Property ' Caltrans owns two large sections of property along Pacific Coast Highway, totalling 66.8 acres. The first stretches from Beach Boulevard southeast to Newland Street (area 1 and a portion of area 2, Appendix E); the second is a strip which runs ' along Pacific Coast Highway from the southeastern comer of the Edison property to Brookhurst Street (portions of areas 5 and 6, Appendix E). ' The Department of Fish and Game has determined that 38.8 acres of this property are degraded but viably functioning wetlands, 9.6 acres are restorable wetlands, 5.9 acres were historically wetlands but are unrestorable, and 12.5 acres are historic uplands. The Department of Fish and Game excluded a 7 acre parcel, owned by ' Caltrans, from its study. This is the parcel being used by Action Boat Brokers as discussed below. Caltrans originally acquired its property through condemnation proceedings ' to extend the state freeway system down Beach Boulevard and along the coast. Although these plans eventually were abandoned, Caltrans has retained ownership of the ' property. Both Mills and Picarelli, the previous owners of the two sections of property, have sought to regain ownership of the parcels. Several years ago, Mills filed a suit against Caltrans involving this property. A settlement of this litigation presently is being ' negotiated which could result in Mills being granted a right of first refusal of an offer by Caltrans to sell the property. Picarelli gained such an option to the property Caltrans condemned bordering her parcels through a court order settling a similar suit. Picarelli's option runs into the early 1990's. The portion of Caltrans' property that abuts the Mills' property consists of several parcels, which are designated Conservation in the LUP and zoned RA-0-FP2, a ' residential agricultural district allowing oil production. Most of this land is vacant (approximately 21 acres), and the City's Department of Community Development has proposed to rezone it "Coastal Conservation." This zone designation would permit the ' Coastal dependent uses described on page 5, above. The 7 acre parcel fronting Pacific Coast Highway is occupied by Action ' Boat Brokers. As noted above, it is outside of the Department of Fish and Game's 6 wetlands assessment. The parcel is designated as visitor-serving commercial and is zoned ' RA-O-FP2 (Residential Agriculture District combined with Oil Production and Floodplain districts). The proposed zoning for this parcel is VSC-CZ-FP2, a visitor serving commercial district combined with oil production and floodplain districts. This ' zoning would allow a wide variety of uses including numerous types of shops and restaurants. With a conditional use permit, the parcel could also be the site of an office, hotel, or parking structure. ' Another Caltrans parcel is outside the wetlands assessment. It is zoned MH-CZ, a mobile home district, and is the site of the 45-unit Cabrillo Mobile Home ' Park. No zone change is proposed for this parcel. The portion of Caltrans' property that is contiguous to the Picarelli property is designated "Conservation" in the LUP and is currently zoned LUD-FP2. The latter is a zone designation "which limits development activity in order to allow time for resolving further planning, zoning and/or environmental issues." (Huntington Beach Zoning Ordinance § 9410.) The zone allows a variety of uses in keeping with preservation of the area's natural habitat, including aviaries, boating, picnic grounds, and riding and hiking trails. The proposed zoning for this presently vacant parcel is Coastal Conservation. 1 Mills Property ' Mills Land and Water owns approximately 23.72 acresv proposed for rezoning, consisting of three contiguous parcels, designated as Conservation in the LUP (areas 2 and 3, Appendix E). The Department of Fish and Game found that 15.3 acres ' are degraded but restorable wetlands, 8.3 acres are restorable former wetlands, and 2.9 acres are unrestorable. The land is presently vacant, but on July 21, 1989 Mills applied for administrative review of a proposal to build eight office buildings on the three parcel ' site. Since 1983 the area has been zoned M1-A-0-FP2, a light industrial district which allows oil production This zoning also allows accessory offices to be built. The zoning proposed for the area is Coastal Conservation. The permitted uses for this zone are ' outlined on page 5 above. The Mills property also has been the subject of wetlands litigation. The ' Department of Fish and Game report explains that in 1981, 4.3 acres of the Mills property proposed for rezoning were filled and scraped. The report goes on to state that in July 1983, the landowner bulldozed and diked the remaining 8.3 acres of wetlands on the 16 acre parcel. (Appendix A, p. 15.) Based on these incidents, the Coastal Commission initiated an action which has since been settled. The Department of Fish J Estimates of the size of the various properties discussed in this memorandum vary. The City estimates the Mills property's size at 20.15 acres, and Mills, in a recent development application, states that it is 23.72 acres. The Department of Fish ' and Game figures total to 26.5 acres. 7 and Game, in its report, deemed the 8.3 acres degraded wetlands. The area has ' remained undisturbed since the settlement and most natural vegetation has returned. The three parcels are actually only a portion of the property owned in this area by Mills. The remainder of Mills' property is outside the area of proposed rezoning and is not considered wetlands by the Department of Fish and Game. Two of these parcels are south and contiguous to the proposed rezoning area. One of these is 31.88 acres in size and is zoned MH-CZ (mobile home district with a coastal zone ' overlay). The other is smaller and zoned M1-A-0-CZ, a restricted manufacturing district. These parcels are the location of the "Huntington By The Sea" mobile home park. Presently at the site, there are 307 mobile homes and 140 recreational vehicles leasing ' space in the park on both short and long-term bases. Mills also owns several smaller parcels to the north, also zoned M1-A-O (Restricted Manufacturing District Combined with Oil Production), currently subject to a 25-year renewable lease for fuel tank storage. Edison Property ' The Edison property is 19.1 acres in size (area 4, Appendix E). The Department of Fish and Game's report indicates that 15.2 acres of the property are degraded, viably functioning wetlands, and 3.9 acres are historic wetlands, 2.0 acres of ' which are restorable. The property contains no historic uplands. (Appendix A, Table 1.) The area is designated as "Industrial Energy Production/Conservation" in the LUP and has been zoned M2-0-FP2 (an industrial zone allowing oil production) since 1983. The proposed zoning is M2-O-CC-CZ-FP2 which would allow expansion of the present generating plant. The City's staff report on the subject notes that "the Coastal Act would not normally allow development of the . . . property," but does permit the development of energy production facilities if "no other alternative site is available." ' (Appendix C, p. 6.) Edison owns two other properties affected by the proposed zone change. Area 8 on Appendix C is the 55 acre site of the power plant. It is designated Industrial ' Energy Production on the LUP and zoned M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts). The proposed zoning would only add a CZ (Coastal Zone) suffix to the existing zoning designations. '. The other Edison parcel is Area 9 on Appendix E, approximately 28 acres designated Industrial Energy Production on the LUP and developed with oil storage ' tanks for the power plant. Existing zoning is ML-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and a MI-A-FP2 (Restricted Manufacturing District combined with Floodplain District). The proposed zone change would only add the CZ (Coastal Zone) suffix to this property. ' 8 Picarelli Property ' Picarelli owns two vacant parcels in the area totalling approximately 45.2 acres (areas 5 and 6, Appendix E and Appendix A, Table 1). The land lies to the east of the Edison plant stretching to Brookhurst Street between the flood control channel and the Caltrans right-of-way. The parcels are designated in the LUP as Conservation and have been zoned LUD-FP2 (limited use district) since 1983. Picarelli has never ' applied for a permit to develop this land, but executed subsurface community oil and gas leases for the property in August 1986 and November 1988. The proposed zoning is Coastal Conservation, permitting the uses described on page 5 above. The Fish and Game report designates 44.6 acres of this property as degraded but viably functioning ' wetlands, and 0.6 acres as restorable wetlands. ' City Property The City owns approximately 5 acres west of Beach Boulevard, 4.8 of which ' is considered historic wetlands. (Appendix A, Table 1.) The Fish and Game report found that roughly half of these historic wetlands are unrestorable, approximately 0.8 acres are degraded but viably functioning wetlands, and 1.4 acres are restorable. This property is included in the City's Downtown Specific Plan and is part ' of the Waterfront Project approved by the City in 1988. In the environmental impact report for the project (EIR 82-2), the City recognized that the project would impact the ' wetlands if left unmitigated. In consultation with the Department of Fish and Game, the City determined that it would require the developer to mitigate impact on the 0.8 acre area that continues to function as wetlands. (See Resolution 5913; Letter of Fred Worthley, Regional Manager, Region 5, California Department of Fish and Game to ' Robert W. Balen, LSA, dated April 21, 1988.) The City, in its approval of the Waterfront Project, required that the ' developer prepare a "detailed restoration plan" for 0.8 acres of wetlands either on-site or elsewhere, preferably within the City, and full mitigation before the subject wetland is altered. (See City Resolution 5913.) Resolution 5913 also requires that the project's ' runoff management system provide the same amount of freshwater to adjacent wetlands as the areas have previously received, or provide evidence demonstrating that proposed changes are insignificant. ' 1 Conservancy Property The State Coastal Conservancy, in its April 24, 1987 staff recommendation ' on the Huntington Wetlands enhancement project, outlined a plan to convey 17 acres owned by Caltrans to the Huntington Beach Wetlands Conservancy, a private nonprofit corporation, for long-term management as a restored wetland (area 7, Appendix Q. The ' report recommended that the State Coastal Conservancy allocate funds not to exceed 3 $459,000 to purchase the property and carry out the restoration project. The land was valued at a fair market value of $7,500 an acre. 9 The restoration project has been carried out and is a remarkable success. ' It is currently zoned LUD-FP2 and LUD-FP1, both limited use districts. The proposed zoning is Coastal Conservation. ' ANALYSIS ' LEGAL QUESTION Does Zoning Property as Coastal Conservation Within the Coastal Zone Constitute a Cause of Action for a Taking Pursuant to the Fifth ' Amendment to the United States Constitution? A cause of action for a taking may be stated if the land use restriction ' (1) fails to substantially advance a legitimate governmental purpose, or (2) deprives the landowner of all or substantially all reasonable use of the property. (Agin v. City of Tiburon (1980) 447 U.S. 255; Nollan v. California Coastal Commission (1987) 483 U.S. t 825; First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) 482 U.S. 304; United States v. Riverside Bayview Homes, Inc. (1985) 474 U.S. 121.) ' In First English, 482 U.S. 304, the United States Supreme Court held that if the zoning deprives the plaintiff of all use of the property without justification, the Fifth Amendment to the United States Constitution requires that compensation be paid from the date of the taking until the zoning is rescinded or invalidated (a "temporary ' taking"). The Supreme Court remanded the matter to the state courts for further proceedings on whether a regulatory taking had actually occurred, i.e., "whether the ordinance at issue actually denied appellant all use of its property, or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." (Id. at pp. 2384-2385.) ' On remand, the California Court of Appeal recently held, in an opinion filed May 26, 1989, that the complaint failed to state a cause of action because the ' ordinance substantially advanced the preeminent state interest in public safety and did not deny the landowner all use of its property. (First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1989) 210 Cal.App.3d 1353.) The court indicated there is a hierarchy of police power purposes for a takings analysis stating: ' "So it makes perfect sense to deny compensation for the denial of 'all uses' where health and safety are at stake but ' require compensation for the denial of 'all uses' where the land use regulation advances lesser public purposes." (Id. at p. 1353.)§/ J As an independent ground for its decision, the court held that the ordinance ' imposed a reasonable moratorium for a reasonable period of time. 10 This recent decision has clarified the position of the California courts on issues raised by the U.S. Supreme Court in its 1987 decision in the same case. Our analysis of the Coastal Conservation zoning under the two prong "takings" test is as follows: 1. Does the Zoning Substantially Advance a Legitimate Governmental Purpose? j % Preservation of functioning and restorable wetlands has been held to be a ' valid exercise of the police power. (Mira Monte Homeowners Association v. San Buenaventura County (1985) 165 Ca1.App.3d 357; City of Chula Vista v. Superior Court of San Diego County (1982) 133 Cal.App.3d 472; City of San Diego v. California Coastal ' Commission (1981) 119 Ca1.App.3d 228; Public Resources Code § 30240.)___ = A le, factor is whether the roe zoned Coastal Conservation is in fact P P rtY o ' a viably functioning or restorable wetland. It is clear that a landowner has no right to dike and fill functioning wetlands to make its property developable. (City of Chula Vista, 133 Ca1.App.3d at p. 497; Public Resources Code § 30233.) 'In Candlestick Properties, Inc. v. San Francisco Bay Conservation and Development Commission (1970) 11 Ca1.App.3d 557, 572, the landowner claimed that the denial of an application to fill a parcel of wetlands adjoining other parcels which had been filled, or were in the process of being filled, was a taking. The court held it was a valid exercise of the police power, and the landowner was not entitled to damages for confiscation of its property without compensation. The court distinguished cases where the practical effect was to appropriate private property for a flood water detention basin and open space. (1d. at p. 572.) Just as a landowner has no right to dike and fill wetlands to make his/her ' land developable, the government may not flood landowners' property to restore former wetlands (Candlestick Properties, 11 Cal.App3d at p. 572). Also, if private property becomes inundated during a storm, it does not automatically become a protected ' wetland. (Beach Colony II v. Coastal Commission of the State of California (1984) 151 Cal.App.3d 1107.) In Beach Colony II, the Coastal Commission argued that there was no right to rebuild a land mass lost through avulsion once the eroded areas became covered with waters from the adjoining lagoon. The court held that encroaching waters which overflow and cover previous dry lands solely because of physical damage caused by a violent event do not automatically transform the land encroached into a protected wetland. (1d. at p. 1108.) As the Court of Appeal has recently told us, there is a hierarchy of police power purposes, of which the public health and safety are at the forefront. (See First English, 210 Cal.App3d 1353.) Preservation of wetlands relates to long term environmental health because wetlands serve as critical feeding and breeding grounds for fish and wildlife. Their continued functioning has been associated with the quality of both local water and air (as recognized by the legislature in its protection of San 11 Francisco Bay, = Government Code § 66601; also see Deltona Corporation v. United States (1981) 657 F.2d 1184, 1188; Just v. Marinette County (Wis. 1972), 201 N.W.2d. 761, 767; Steinberg, et al., Wetlands and Real Estate Development Handbook, pgs. I-3 and 4.) ' By similar reasoning, restorable wetlands would also rank high on the hierarchy. Their precise place in the hierarchy has not yet been determined by the courts since the court's ruling in First English. In light of the state and federal ' legislation on the subject (see Public Resources Code § 30200, et seq.; 16 U.S.C. § 1301), there is no doubt that preserving wetlands serves a valid public purpose. 2. Does the Zoning Deprive Landowners of All or Substantially All Reasonable Use of Their Property? a. The Zoning Does Not "On Its Face"Deprive Landowners of All or iSubstantially All Reasonable Use of Their Property. Takings claims are classified as "facial" or "as applied." As in First English, 210 Cal.App.3d 1353, the Coastal Conservation zoning does not on its face prohibit all use of the property. It permits, among other uses, aquaculture, passive nature study and boating facilities. (The other uses are set forth at p. 5 above.) The economic viability ' of these uses is not relevant to a facial analysis. (See, e.g., Agins, 447 U.S. 255; Baytree of Inverrary Realty Partners v. City of Lauderhill (llth Cir. 1989) 873 F.2d 1407; Lake Nacimiento Ranch Co. v. San Luis Obispo County (9th Cir.' 1987) 830 F.2d 977, amended opinion 841 F.2d 872; Pace Resources, Inc. v. Shrewsbury Township (3d Cir. 1987) 808 ' F.2d 1023.) b. Does the Zoning "As Applied" Deprive Landowners of All or Substantially All Use of Their Property? Even otherwise valid zoning may give rise to a cause of action for a taking if, as applied to a particular parcel of property, the effect is to deny the landowner all reasonable or "economically viable use." (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.) Economically viable use does not mean the highest and best ' use. In fact, severe diminution in value as a result of downzonings has been held not to be a taking. (See, e.g., Village of Euclid, Ohio v. Ambler Realty Co. (1926) 272 U.S. 365 [75% diminution in value]; Hadacheck v. Sebastian (1915) 239 U.S. 394 [cited in First English, 482 U.S. 304 and Nollan, 483 U.S. 825 - more than 90% diminution in value]; Agins, 477 U.S. 255 [downzoning to 1-5 units/acre].) Whether a particular regulation does in fact constitute a taking, requires an "ad hoc factual inquiry" and depends on an analysis of a number of factors such as the character of the property, the character of the governmental action (a physical invasion versus a regulation promoting the common good), and the economic impact of the regulation. (Penn Central, 438 U.S. at p. 125.) 12 i� 1 Given certain facts, application of the Coastal Conservation zoning to a ' particular parcel of land could give rise to a cause of action for a taking under the Fifth Amendment. Before a federal court has jurisdiction over a takings claim, it must be "ripe" for judicial action. This means a plaintiff must first have (1) received a final decision from the regulatory agency as to the uses that will be allowed on the property, ' and (2) have sought compensation in state court under state law. (Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) 473 U.S. 172; )Gnzli v. City of Santa Cruz (9th Cir. 1987) 818 F.2d 1449; Shelter Creek Development Corp. v. City of Oxnard (9th Cir. 1988) 838 F.2d 375; Hoehne v. County of San Benito (9th Cir. 1989) 870 F.2d 529.) The first prong of this "ripeness" test generally requires the landowner to have applied for and been denied at least one meaningful development application for a variance from the zoning.) Case law has recognized that a developer need not pursue endless development applications where it would be futile to do so. However, the same cases firmly establish that, as an absolute minimum, the applicant must file and pursue at least one meaningful development application to a final adverse decision. (Kinzli, 818 F.2d at pp. 1454-1455; Herrington v. County of Sonoma (9th Cir. 1988) 857 F.2d 567, 569, cert. denied (1989) _ U.S. , 109 S.Ct. 1557, 103 L.Ed.2d 860.) The second prong requires the landowner to exhaust state judicial remedies that were in existence at the time of the taking. (Williamson County, 473 U.S. 172; Hoehne, 870 F.2d 529.) ' The analysis of a takings claim under the California Constitution is 3 substantially the same as the analysis under the Fifth Amendment to the United States ' Constitution. (Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862.) Exhaustion of administrative remedies or the requirement of a final decision on at least one application for a land use permit is required under the California Constitution. (Pier Gherini v. California Coastal Commission (1988) 204 Ca1.App.3d 699.) 21 See Florida Rock Industries v. The United States (1986) 792 F.2d 893, and Loveladies Property Owners Association, Inc. v. Max Raab, United States Army Corps of Engineers (3d Cir. 1977) 432 U.S. 906, for a discussion of circumstances where compensation may be required under the Tucker Act, when the Corps of Engineers refuses to allow development pursuant to the Clean Water Act. See also Jentger v. United States (1981) 228 Cl. Ct. 475 and Deltona Corp. [Landowners fail to establish Fifth Amendment taking where permits to dredge and fill denied by the Army Corps of Engineers], and Just v. Marinette Co. (Wis. 1972) 201 N.W.2d 761 [compensation denied.] 13 SUBSIDIARY QUESTIONS ' Sub-Question No. 1 What Are the Potential Legal Consequences of Rezoning the Mills/Picarelli/Edison Property as Coastal Conservation? It is likely that at some point a lawsuit will be filed against the City, and ' perhaps individual City officers and employees, based on some or all of the legal theories discussed in this opinion. Such lawsuits are often well financed and expensive to defend. The landowners may try to first exhaust their administrative remedies and set ' up a "ripe" claim by applying for development approvals. We are informed that Mills has filed an application for an office development on functioning and restorable wetlands. Even though the reported appellate decisions make it fairly clear that, except in very unusual situations, liability will not be imposed on cities for zoning ' mistakes, trial courts frequently hold against the defending government agency. As indicated by our analysis above, a facial challenge to the zoning would not be likely to succeed. With respect to the zoning as applied to the Edison, Mills, and Picarelli properties, based on the facts outlined above, our analysis is as follows. ' Edison Property The Edison property is presently being utilized for a presumably economic use that is consistent with the Coastal Conservation zoning. Application of the zoning would not appear to give rise to a takings, due process, or equal protection claim. iMills Property The Mills property includes several large areas with existing economic uses 1 (the trailer park and fuel tank storage yard). In addition, Mills has the right to buy back the Caltrans frontage property that was previously condemned for a freeway. A portion of this property can be developed for fairly intense use. ' Given these facts, Mills would not appear to have a claim for a taking because as a whole the Mills property has many economically viable uses, both existing and permitted. A landowner may not parcel up his property to create a takings claim. (See Penn Central, 438 U.S. 104; Keystone Bituminous Coal Association v. de Benedictis (1987) 480 U.S. 470; Zilber v. Town of Moraga (N.D.Cal. 1988) 692 F.Supp. 1195.) The City may wish to enhance its position in this respect by allowing some transfer of development rights from the wetlands to the property zoned for commercial, residential, or industrial development. ' 14 For the same reasons, application of the zoning to the Mills property also ' would not appear to give rise to due process or equal protection claims. Picarelli Property All of the Picarelli property appears to be either viably functioning or restorable wetlands. While an argument can be made that the State's interest in ' preserving wetlands for the public health justifies prohibiting any development of the wetlands, and while the uses permitted in the Coastal Conservation zone may, in fact, be economically viable, a full trial on the merits may be required to decide the issue§/ These kinds of cases can be very expensive to try and the outcome in the trial court is ' far from certain. Therefore, we suggest certain procedural and substantive changes to the zoning (set forth in our response to sub-question no. 4 below) that would assist the City in defending against lawsuits for takings or other constitutional claims. Sub-Question No. 2 ' What Is the likelihood That Such Zoning Would Expose the City to Liability? As stated previously, as applied to a particular piece of property, the zoning could give rise to viable claims for violation of the due process and equal protection clauses, and even a taking under the Fifth Amendment or the California Constitution. Liability for damages for the period of the temporary taking would occur only after the ' zoning had been applied (i.e., a final decision rejecting a "meaningful" development application).) The landowners would be required to try to make an application for some economic use consistent with the planning designation or within the standards ' available for a variance (Williamson County, 473 U.S. 172; Guinnane, 197 Cal.App.3d 862), or prove that no economic use is available under the zoning even with variances. What constitutes viable economic use has not been defined with any precision. In Guinnane, 197 Cal.App.3d at p. 868, a case decided after First English, 482 U.S. 304, the Court of Appeal stated: ' "Here, in contrast, plaintiff did not establish that a taking occurred. The United States Supreme Court has never developed a 'set formula to determine where regulation ends and taking begins: (Goldblatt v. Town of Hempstead (1962) 369 U.S. 590, 594 [8 L.Ed.2d 130, 134, 82 S.Ct. 9871.) When, as here, the claim is made that the regulation has significantly J See lust v. Marinette County (Wis. 1972) 201 N.W.2d 761, American Dredging Company v. Department of Environmental Protection (NJ. 1978) 391 A.2d 1265. 2/ "Meaningful" application has been interpreted to mean one that is not ' overblown or grandiose. (Williamson County, 473 U.S. 172.) 15 1 . diminished the property value, the focus of the inquiry is on the uses of the property which remain. (Penn Central, 438 U.S. 104, 131.) Plaintiff cannot contend he was denied all ' use of his property. He was neither deprived of his right to exclude others from his land nor denied the right to sell the property." ' If liability were imposed, damages would start from the date of the taking (denial of a permit to develop), or interference with a vested right (if applicable), until the zoning is invalidated or rescinded. (First English, 482 U.S. at p. 318.W 1 The courts have not definitively ruled on the appropriate theories for assessing the amount of damages for a temporary taking (Wheeler v. City of Pleasant ' Grove (llth Cir. 1987) 833 F.2d 267), or deprivation of due process (see Herrington V. Sonoma County (9th Cir. 1987) 834 F.2d 1488). ' Sub-Question No. 3 What Other Constitutional Claims Might Be Raised? ' Claims that the zoning on its face and as applied deprive the landowner of procedural and substantive due process, and equal protection of the law under the state and federal constitutions, and claims for damages under the Civil Rights Act (42 ' U.S.C. § 1983) are frequently raised in conjunction with a takings claim. The analysis is essentially the same under the state or federal constitution. 1. Procedural Due Process. Procedural due process is not required for legislative actions like rezonings. ' (Horn v. Ventura County (1979) 24 Cal.3d at p. 612; Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore (1976) 18 Cal.3d at p. 593.) Therefore, there would be no cause of action for violation of procedural due process based on adoption of zoning. ' 2. Substantive Due Process. ' Substantive due process claims may arise where the zoning on its face or as applied is not reasonably related to a governmental purpose (e.g., arbitrary and capricious). (Barancik v. County of Marin (9th Cir. 1989) 872 F.2d 834, 836.) Spot ' zoning cases are sometimes characterized as violations of substantive due process. (See, e.g., Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330.) 1 10/ If the zoning created a constitutional violation on its face, damages would start when the zoning was adopted. 16 As discussed above, the zoning on its face is reasonably related to the ' purposes of the Coastal Act which have been held to be valid. (Yost v. Thomas (1984) 36 Ca1.3d 561, 571.) As applied, there could be a problem if zoning were imposed on lands that do not meet the criteria for wetlands. Generally, a claim for damages based t on substantive due process only arises if there is a deprivation of a protected property interest (e.g., mineral rights, title or a vested right to develop). (Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892.) ' Substantive due process claims, like takings claims, must be "ripe" before the court has jurisdiction over a cause of action. (See, e.g., Shelter Creek, 838 F.2d 375; Herrington, 834 F.2d 1488.) Courts appear more likely to apply the futility exception to ' a substantive due process claim than a taking claim. (See Hoehne, 870 F.2d 529; Herrington, 834 F.2d 1488.) But, the courts seem to always require denial of at least one meaningful development application. (MacDonald, Sommer & Frates v. Yolo County ' (1986) 477 U.S. 340.) 3. Equal Protection. ' The equal protection clause requires that there only be a rational basis for the zoning classification (Nelson v. City of Selma (9th Cir.) 89 Daily Journal D.A.R. ' 10250; see also Pennell v. City of San .lose (1988) 485 U.S. 1; Leavenworth Properties V. City and County of San Francisco (1987) 189 Cal.App.3d 986, 991-993; Court House Plaza County v. City of Palo Alto (1981) 117 Cal.App.3d 871, 882) absent a suspect classification (e.g., race) or a fundamental right (e.g., First Amendment rights). As ' stated in Court House Plaza: "[A] classification will not be deemed unreasonable and discriminatory' if it is based upon some difference, or distinction, having a substantial relation to a legitimate public purpose. [Citations.] The classification will not be set aside ' if any state of facts may reasonably be conceived to justify it. [Citation.] And the decision of a legislative body, as to what is sufficient distinction to warrant the classification, will not be overthrown by the courts unless it is palpably arbitrary.' [Citation.]" (117 Cal.App.3d at p. 882.) There is a general principle that similarly situated properties may not be ' unjustly discriminated against by the government. (Court House, 117 CalApp.3d at p. 881.) In Fry v. City of Hayward (N.D. Cal. 1988) 701 F.Supp. 179, 182, the trial court stated that the fundamental question in cases of equal protection is "how the singling out ' of [a particular property is] rationally related to legitimate . . . objectives." The Court in Fry held that requiring voter approval to amend the open space zoning of one parcel, and not the other similarly situated properties, violated the equal protection clause. The ' court noted, however, that challenged ordinances are presumptively valid. (Ibid.) Courts have found violations of equal protection rights in certain spot zoning cases. (Hamer v. Town of Ross (1963) 59 Cal.2d 776; HFH, Ltd. v. Superior Court of Los Angeles County 17 1 � ' (1975) 15 Cal.3d 508, 527, fn. 5.) Courts have, however, upheld a wide variety of land use classifications against equal protection claims. (See Penn Central, 438 U.S. 104. The Coastal Conservation zoning, on its face, would not appear to violate ' the equal protection clause, as it meets the rational basis test. As applied to a particular piece of property, a cause of action might be stated if the zoning were applied to one parcel and not a similarly situated parcel. The Coastal Act's distinction between viably functioning or restorable wetlands and nonrestorable former wetlands would not appear to violate principles of ' equal protection, because only restorable and functioning wetlands have biological value. The provision for on or off-site mitigation for destruction of relatively small wetland areas also seems rational. (See City of Long Beach v. Mansell, 3 Cal.3d 462.) ' The area west of Beach Boulevard was historically wetlands, but most have long since been degraded beyond restoration (Appendix A, p. 2). Some wetlands exist in this area and more is restorable. There is a factual issue as to whether placing ' conservation zoning on property east of Beach Boulevard while permitting commercial development to the west would be a denial of equal protection. Due to the unequal sizes of the respective 'wetlands" areas we believe that the proposed zoning would be ' defensible against an equal protection claim so long as the nature and extent of the respective areas as wetlands had been adequately established. ' Sub-Question No. 4 What Measures Might the City Take to Reduce Any Exposure to Liability? ' There are certain procedural and substantive changes to the zoning ordinance that the City may wish to make to reduce the likelihood of conflict. In addition, the City may decide to institute a planning alternative in an attempt to arrive ' at a consensus as to the uses of the Mills/Picarelli/Edison properties. 1. Transfer of Development Rights. ' A frequently applied concept is that of "transfer of development rights" ("MR's"). TDR's have been recognized by the United States Supreme Court as a ' means of avoiding court findings that restrictive land use regulations result in unconstitutional takings of private property. (Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104. See also Deltona Corp. v. U.S. (1981) 657 F.2d 1184, 1192, fn. 14 "such [TDR's] mitigate whatever financial burdens the law . . . impose(s) . . . and, for that reason are to be taken into account in considering the impact of regulation" quoting Penn Central at p. 137.) The concept of TDR's is relatively straightforward, although the practical and administrative issues can be complex. TDR's operate by permitting the transfer of development rights from certain 'burdened" property ("sending" property) to other ' properties in the jurisdiction ("receiving" property). Value is given to this transfer right 18 1 by permitting a greater than normal intensity or density of development on the "receiving" property. ' Key elements of developing a TDR program include: a. identification of the "sending" zone properties; ' b. determining the amount of development that can be transferred from the "sending" zone properties; c. identification of the "receiving" zone properties; d. determining the additional ("greater than normal") density or intensity ' that will be permitted on the "receiving" zone property. In structuring a viable TDR program, the City should select sending and ' receiving zones pursuant to previously established planning criteria and identify an appropriate public purpose. The courts have upheld TDR's which protect environmentally sensitive lands, such as beaches, open space, agricultural lands and historical and architectural landmarks. (See, e.g., Penn Central Transportation Co. v. City ' of New York (1978) 438 U.S. 104; City of Hollywood v. Hollywood Inc. (Fla. 1983) 432 So.2d 1332.) Protecting environmentally sensitive wetlands would fall within the basic public purpose of TDR programs that have been held valid. Care must also be taken to identify receiving zones where greater development densities will be allowed. If there is no market for development in the ' receiving zone, the TDR's will have no value and the program will fail. The City could develop a TDR program which would identify the ' functionally viable wetlands as sending zone property and nearby unrestorable wetlands or upland properties as receiving zone property. 2. Administrative Claims Procedure For Resolving Wetlands Designation ' And "Takings" Claims. The following administrative claims procedure should be incorporated into ' the Coastal Conservation Zone to allow applicants to challenge the designation of properties as wetlands and the economic viability of the permitted usesw: a. At the request of the applicant, a hearing shall be conducted by a Special Master (appointed by the City Council) to determine if any of the uses permitted in the Coastal Zone are economically In Rossco Holdings, Inc. v. State of California Coastal Commission (1989) 212 ' Cal.App.3d 642, the appellate court indicated that taking claims could be fairly heard in an administrative process. 19 viable for the property in question. A hearing must be conducted prior to the applicant filing a court action on the matter. ' b. The applicant shall bear the burden of proving that there are no economically viable uses permitted. c. The applicant may challenge the subject property's classification ' as functioning or restorable wetlands. d. The hearing shall be conducted as a full evidentiary hearing ' pursuant to Code of Civil Procedure § 2002, et seq., including sworn testimony. ' e. If the applicant meets his/her burden of proof, he/she may then propose a use that would be economically viable and would minimize any disturbance to the natural habitat of the property ' or adjacent areas. f. The applicant shall be responsible for providing off-site mitigation to compensate for disturbing natural habitat. g. All proposed uses which disturb the natural habitat and proposed off-site mitigation measures shall be subject to review and approval by the California Coastal Commission and the State Department of Fish and Game. h. Appeal of the Special Master's findings shall be to the City Council whose decision shall be reviewable pursuant to Code of Civil Procedure Section 1094.5 and within the time allowed by Code of Civil Procedure Section 1094.6. ' i. The City may charge a fee to cover the cost of the hearing. ' 3. Specific Plan/Redevelopment for the Area. The City may also wish to consider adopting a redevelopment plan or a ' specific plan for the wetlands properties. The plan could tie development of the wetlands area into the Downtown Redevelopment Plan and serve as a basis for a TDR program. 4. Acquisition/Mitigation of Wetlands Properties. The City should also investigate various wetlands acquisition and mitigation ' programs. The Ports of Long Beach and Los Angeles are required to restore wetlands to mitigate wetlands destruction in San Pedro Bay. The Ports have formed a Biomitigation Task Force which has identified wetlands sites for potential restoration. 20 1 . ' Portions of the Huntington Beach Wetlands were ranked high as potential mitigation sites. 5. Uses That Enhance Wetlands Values. Additional land uses that are compatible with the wetlands habitat should ' be explored as permitted uses within the Coastal Conservation zone. A provision for "other similar uses" could also be considered in conjunction with a conditional use permit requirement. Passive visitor serving uses which focus on the coastal wetlands environment, such as an aquarium or habitat sanctuary, may be appropriate if carefully designed to protect the wetlands. These uses would be consistent with Coastal Act policies to encourage coastal dependent land uses. ' It may also be possible to use the wetlands in conjunction with other private development. For example, an aquarium or habitat reserve may be economically feasible if linked to nearby commercial development. The City may wish to explore ' these uses through the specific plan or redevelopment plan approach discussed above. Wetlands have also been restored in conjunction with sewage treatment plants. The City of Arcata, California, located on Humboldt Bay, integrated a wastewater sewage treatment system into its pilot Marsh and Wildlife Sanctuary Project. The wetlands treat the wastewater effluent which, in turn, encourages fish and bird habitats on the site. (Details of the Arcata project, its aquaculture program, oxidation ' pond, and urban fisheries restoration are attached as Appendix F.) A similar program may be feasible in Huntington Beach in conjunction with the adjacent sewage treatment plant. 1 CONCLUSION ' This concludes our legal analysis given the facts presented at this time. We would be happy to discuss this report with the City Council in greater detail. ' 21 Q _X G Z W a IL Q • , , DLP:.'.7!::1'T OF ?'ISii l''T) G!"*' '""=T.::'t;IaTIG:; ' •'t OF 711E STATU:: OF ir: KUNT"INCTO:i GEI C: wE'i.nt.T.S ` Tr.:rn',uction I., r.-weir- the subject •6eters►inttion, the Departnent of Fish and Came Lu responded ' to those :pccific consideratis-ins n:ndated by Section 30411 of the California Cozstal Act of 1976. This act acknot:ledres rise Department of Fish and Came and the �' � � �� the principal state agencies z=sponsit►le for t)s: Fi...i ants i•.:a_ Commission ..., ' estnblii::men: and, control oa Rildlife and fishery managemcra p-.c•s=a:::s, Coastal Lct Ccrt:an 3:),)1(b) stipal tes that the Department , in eonsultatior. with the Cast.-1 ' Co:---_sti-on sne Dep:rtrent or Eoatin� a^d Vztervv2ys, rir_y study dcl-7a.:cd wetlands rind identify thoSc t :ich cLn D_ most fc2sibly rest orce- in con:un--t:on f':th a boLtJr- Tzcilit,y, or v'l.c.,Ler there are "other feasible wzys" to 2--hieve restorzt.o n. This 1'C1:C,ri: repprer-cnts the Dep.tv.1-eats, deEcrminat ions rc(•:rd inq: the hurt ir.i;::\',- i Leach l:c•_lards pursuant -to Coast;l Act Section 30411(b). Tl,:s repo:. inclu C- ti .- follov:rq. secticns: Sup-nary of t,ajo: Fini,inrs; Central history; Extent o: ' liisC6r ical t:etl:nd. ; Vrc•cc:::t StA.t:. I3csiLn:,tion of Wetlands ane, Criteria r-nd Definition Lpplicd; Poterrinatior of hcgrrded t:cticnds; Restoration of ' within the :.tuey arcr; and Fc,!sibi)ity of Restoring rnd E»':ancinL Wrt)a:,?:: i:5tl.in the study area. ' in s ` �..•-,are r,f r } in•ir. - cxarJination of Irisio:icr,l rrppin,;, cr._sting bic•logical cnta, and upon rtj,e lefinitions and e-iteria outliner✓ herein, the Dcpartr-ent finds that, of the 1{:2,G rcres %:-thin the study a:ca, 149,.9 ccres are historic wctl;,nd and 12.7 cre rj,ir:uric upland (Table 1). Vc fine thr.: of the 149.9 acres of historic 4,eiland our study zrca., 114.7 acres (76.5") continue to function vi2b1}' as .ctlr.ad:, T;,e finds that all 114.7 acres of wetland identified :.re ceErade3 •pur- rsuZnt to the definition cstablisl,cd herein. }:o-.!cvcr, w,- also find that 113.9 of 111(:sc 111 .7 wet)--ae ecrcr (95':) provide ci:lrcr high or h:.tii:a: VEIUCS Lo ryr:l?i:�-LSS0=:2LCd bird-. Furil:c-, the Dcp cl :r-.cnt finds tl,tt t: ip: resto-ztion cff; -:s . o ld nc_ b= roqui:ed to restcsc and c•r,h:.ncc on ; 1-.7 r.cres ri?cr._i :ice in this report . tonc :act lands (31 .2 a-_) locrtcd sc•u:hccst o: LI-z:ch Lou'.t:: rc hay-^ ::.'n so rerti•cr_l,• ectraded th:,t they r.o lon�,cr f:.:nc_irm vizlly cs Tnc'sc for:.,c: vctl�ccs l,ouevcr p:ovi:c an c:_crllcr.. ,.otcn: .:l opportc•nity for restorstior.. Nc-!: ro•` :1:: fo:c:c: vct1anes (17,G ;._ . ) in this .�rcz oc:• he fcasibIv restc.cd v:th Ie.-,s t1:r.n L..;jor effort ::5iIc only 10.7 :,^r.cs Z:•c not fcasiLly -e::L0i-c!,lc• . 11i toxic r -ctl;r,c;s (4.E ac. ) Ioc"tcd we t of Lcach 1.oulcL't,rd hzvc :,lsc ur.de:gone seven �cL tion. Of these l,istciric wetlands only 0.8 acres continue to fur.ctinn cs rtlrn ;s, hove:ere sc•c:e former ti,ctland: ( 1 ,4 zc. ) adjaccn: to cl,is site cc+alc! I,e rrer.to.ed to create a 2.2-acre fre!-I) cter marsh. . I . -3- ' Jr. vd6iCion, the Dep.!rtwont finds llrzt 6.7 acres of coast.l. dune lirbitat rind 2.9 zcres c•f irrortznt uriznd l,pbirzt (forn-zrly wctlands) ere environmentally sensitive FursLznt to Sections 30107.5 znd 3024;, of the Costal Act. - f.ddit_c+r.:,ll} , for the purpones of Coas.rl Act Section 30411(b)(2) the Dep::rtvcnt ' fines t>•:a: z bortir..:� facility can bu nf- sufficient'-y small size that a restored ure:l_-^d zrcz r:ecting the mmirum 75',: rcquircm-ent of Section 30411(b)(2) can ba =.2i:::aincd as z highly productive uetizrd in conjunction with such a project. thi: fir.dinC, th^ IIc!pni1,,cr.t specificzlly finds lhst uetlar;r; :cstnra;ioa is nc: taort fczs_biy -ccon;.linccd throuzh cstcblishmcnt of n boatinC fz:ili: y in tl,C .,,t,dy zre:.. Ti,_ D_•P:.-trcnt find: .that the mst fecsible r==ans of valuc. ti,; szuey crea is tlircu,-h con=olid_.ion of ' t:ca:•�ccrr,; or e;:istinG uc; lcnos by F:•b: ic ant privztc ]zndevncrs or the :rzr.sicr of I F•-i�z.�]y-o ncd �:ctlar.c. to Llic zzcncy or Triva;c nrCc-,. rztion fc•r vc.)rr+.d li-,, I,cr:rtncnt finds thzt , r inima:l: Il6,3-acre wet lend/o?l.;nd systcr.:, rf 13C,7 zcrcr• of cr.i tir:r %•ctlant'.s end 11 .6 acres of existin^ enviren er.t::ll}- een�:; i�c unlzl?, crn be fe.:sib v m.:_nl. ir,%,d an6 enhanced in the study zrez. ane zs it r:orc fully discus!.ed in our response to Co::::Cal /.ct Ilcct icon ti,c find;. thn- a vetI.;nd/rirland systern as lame: ::s )45.3 ' ccrct in size con:is:ing of 133.7 zcrc:: of vctlarid end ) 1 .G acres of .c.nvironncntally sensitive uplonds rr,y Lc feasibly nai:Ptzincr;, cnhanccd, cnd restored within the study area if ecvelopment of the rer..sinir,r, 17.3 acres of tic, rluL'y -.'ea Lroccedr consistent with the five reconrr.cr,dations made on 26 r:ne i7 of tbi: report. Cencr^1 1... tory .Inc study zrca is z, remnant of L once cxtcnsivc vctltnd crea wish exir-ted bt the ' nouth of U;e. Santa Ana F.ivcr (;iEt;re 1). This we�lend ves historically connected to )tcupo:t Ley by the mcsmdcrinF Santa Ana P;-vcr. • The present watlznd (114.7 Be ' is 211 that rcL-airs of 2pprvxiqaic iv z,=v;'., ;,,ac!� ui historic wctiands vhich c;ristcd upcosst (northwest) from what is nov the Scr.tc At,a Fivcr Flood Cer:trol ' C,2nnc1 This reduction in zrca_ of nearly 95 .' has cc::u:red p—ima::ly due to •the ' ehunnclization of the Santz Ann F:ivcr and other drainaFc: courvc_ -.nd subsegcen; ly frc•n cncroazt.-mcn: of residc::tizl , coc:mcrcizI and irdcstrisl d:vcicpments ir. tire ' Ci:y of '.'.ur,: inLto;L Leach. 'Fhc study crcc h:.s been forr_slly cl:.ssif_cd as vetlZ.•.. by the Ltatc of California. sirr:c z; 1ca-L 1971 (�adc� ich 1;a0; ;.pper:di:_ .'•), ' Extenz of Fisrorical :.^::ands in tfic Stucry 'arc.) ' Cur Ltu?y bred consists of Lh:•se non-6cvclo-c;. prrccls wizhln Ll;e Coastzl tone boundary o. tht- Ci r y of I:unt inLton ;•each bordcrcZ -y Ec.Cl. l:a; 1c�crJ T'2cifie Coast }liLt;uay (PC1:),. the CohL3 ;.ne I;ivcr, and the C+:ar.`c County }'lead ' Conlrc•l Channel. Leditionally, tl,c study arcz• ir.cludc: Lhzt zrca bordrrcc: Ly t`:c f)ool' control chznn-zl , Ucvland Street, and the }'eel StorzZc Facility Lrro:hcr sr-z11 area (5.0 :crcc) generally wesL of beach Toclevard (Firure 2). Lz: ce upon eercful consideration of historic in the study rca, vZ: l-:,vC conCluc:cd tho: ' 12.7 acres ir--r.cdia;ely adjaecnL to ! Cl! %.-ere historically U* 1Izlld in t}Ic forr.I of ' ec:,st,21 6uncs and that the rcmaininZ 11-9.9 ecres of the 162.6 acre study :•rc.i vcre historic wc:lands (Fi&urc 1, ?::hlc 1 ). Of thcsc historic vctlnnds , 3S. 2 r, rcs lave been so severely dcZ-raded thaL they no lonZcr function as .rcLlan?s , hLL 21 .9 of 1 , Imo: I t• I O Li. Of 1/ l ►' • r, 'n I I /,r � '\ / I ��. � � I �' r-1 vim. �;\., ;• �. , , � � � :j '� _ F III► rS 1. I T,ULC 1 . Illstoric w^'lcnd3 end it,ln7,ls within the ;;ontington M nch ',:ctlnndo. Cit• of Som.tlic-rn ";t +{ e of 1d111.3 Lnnd . Ittintin"ton Cnlifornla Criss Cclifcrr.i.a Thorpe V,*,,tcr Co. Rcnch Edt^en To`r.l I . Historic ,%ctlnnds (acres ) A. Non-dcCrwled wctlands D. Dcbradcd but vi:bly functicnin wct1nnds . 1 . Provicinc 00cu;,1cnted 33.° 15. 3 - 15.2 113 .9 high 0.10 modvratc 11,111itat value to ,�ctl,�ncl-asseci ,.ted ovi f•^n,m. 2. Pr ovidin; lots v,aluc - - - 0.8 - 0.8 for wetland-associated ,avi.'^una and arcas , not vet thorc>>�iil,- • Subtotal 33.0 41.G 15. 3 0.8 15. 2 1111 C . historic wctlr.nds no lonr.cr viably functioning as �;ctlr.nd!;. 1 . Rc torable 9.6 O.G 8. 3 1 . 11 2:0 2i. 9 2. Not Restorable 5.9 - 2. 9 2.6 1.9 13. 3 Subtotal 15. 1 0.6 11 . 2 14 .0 3 .9 35. 2 historic Wctlrnd Total -1,11. j 145. 2 26. 5 4 . 8 19. 1 1'19. 9 (act-c's II. Historic iIpl,.nds (rcres) 12 - - - 0. 2 - GRAN-D TOTAL 66.3 47. 2 26. 5 5.0 15. 1 iG2.G (r.cres ) -7- Circle acres are restorable frm a bioloCic:: and technical standpoint while 13.3 acress are not. Of these 21.9 cores, 2.9 acres i=cdiately upcoast (northwest) from the intersection of Brookhui•St Street and PC:i are now important as uplands and should be considered environmentally senLitive pUrsJ3nt to Coastal act Section 3024C. i'hi n upland is domin 3tcd by goldcm:ced, liaplo-33ppus venutus. ' Althou--h thes. 2.9 acres arc readily restorable as v=tlands, their contribution to the overall ecozyctem in ter_s of habitat diversity, their high quality, and their locetion leads us to believe tt-.:t they would b•= rrast advantaZ,,ouSly mnintainorr and ' ran:3cd for their upland values. The remaining 19.0 acres of restorable for_:er are cesc::t:all; devoic, of h!b:tat ValUL for .vildlife, and con:;ist o: :_lltc, scraped or M"Pir'.y dir. ;rbcd arczs. lastly, 13.3 core:, of bis:c•ric wc;tic.:d are rot feasibly r._storable ty vi:•tee of their adjccer.c:V to cc; iv^_ ' devc:cp-lent, the =Cnitudc of fill deposition, ar•djor their size and shape. :here arc: are not. vcgcsated by vetland species ror do they provide• sigrni:iean_ habitat va?c:_ for wildlife (Table 1 anu FiEurc 2). I'rr ^i:t Statr:s ' There presently exist 111:.7 acres of via:)ly functioning vr:t lar:ds in the study arr.a . ' 7nc-re :etlards arc non—tidal in nature. They are primarily a combination of vc2.C:atcd and non—vcZctated ve- land flnrs , and wanifest va;ioua salinity regiucs . Le=i:�a a plant species include piekleveed (Salicornia virrinin), alkali heath (Frcn; eni3 ^rnndifOlia) and salt grass (Distiehli: Sl,ie3tn0 .n salt marsh area:: ; ' r;il.y rush (Junco!. ac:rtu:: ) arid bulrush (Sc irpu. spp. ) in brackish water m3rs;i 1 �e��'��'��i\�=�. t•_` i���:•':\,7�J _ w,�\ iGL•;�:: (I:IS;J.'.Ii.� :,_:L'.•�S •• . �. _ �i\� }` . /_ \\``C•' .,Y,'t!��� ✓ �, ltestoroblo 3.9 '�� ��i\' .r•�^�✓�.t.�T' •�\� is t.-Y�y \. Pp�� '\ •.._� :dt 'rts:or:,blo '�•� ./ C ,; �'„vL_ /�•1• J J i �. CCn:rnl •`'• _ i � _. �._,� CALIF T;a:T t(n•.:.:r.r,C (l _ O Odk lx \ ` _ -Ic :S:c � "`..� � _ ,.' � ,'- � � ��. —.�� •ice .�^ :.�—� i ' CF 'r.': ��.'-� ti' ��^^ I �• � , �•..--, �..�_ .•ram �'- ,.11..►..` `J`J• I• ir 1•:r -1 7:!_;-\'D-ASSOCIA:L.D b:9:)571 C-.�\e"u ��`it � -•• .-_-_ ___ i� o ���' UPLAi � cF_�'.,r T:•_.. =odifled by t.`.e Dept• o: NO. .3-id Game, 1N-TLrnI NLiJ ' 1 <vkI.N c: L oNu..=c , Dc;p'ctcd By ",'he D,-�',. C1 F. Ar." C. 'r„ ci;,re 2 - - i/P,2 arras; and cattail (Tvpha spp. ) in freshwater marsh wrens. Salicorr.in virr.inia an obligate hydrophyLe, 1is clearly the predominant plant :necies in the study area. Coe-.on Wetland plant species present are listed in Appendix 1 cnd in Soule (19SO). ' )ion-vrSetatel flats (salt flats) are wetland areas Atich, because of their lover elevation, are subject to core drastic water level fluctuation than are vegetated Carshes. This factor, in combination with hirh concentrations of salt in the ' substraCc of these areas, serves to severely restrict the Erowth of rooted hydro- p';ytes. Brine shrimp, anphipods, and ostracods are present in many salt flat ieLecs. additionally, aquatic insects are founi seasonally in these salt flat erces. lu--acts collected_ and/or observed in t_hesc salt flat areas include Lsc'- ' f'.'1GZ2�5 (i�O.:;nCCCidne), wutcr scavengcr beetles (Corixidz�) , mosq;:ito 1J::Ae and salt f-lics ,nJ i - .ac ' The invertebrate population in the subject wet land ?:ca' is ei.t.her directly or ind_recaly. d__pendent upon seasonal algal: blooms in the sal.r_ flat areas .' ibesr. 'l _ . . . s - - . _ ' a x algal bloj a=c, in turn, dcpcarcnt_ uJ+cn the, seasonal t:gtcr 1�^hl:l^. as well r �uLl:icrts ti:!iicli arc produced_ in vcg?tat.cd sa.l.tnar::.h 'c:•.cqs . The inve.tebrate ' population pravides a_ for. Ze: base for•: zn abUndant. and d,iver.se. co;,plcment. of veLland.-orienred bird sPceics. F.L. lees:. 83 bird species have b•:c:n obr•crved in the ' f tmt.ington Beach Wetlands (Appendix 2). O' the 83. spec.ics, 53' sl:ecies arc %,ctland-}scoeiatcd- birds. Included_ among the. spa ei.es known to occur in the study y ar^a, arc the federally and stare-listed endangered Califorcia lca:;C tern and th;: ' Rate-3isted•cndangcred lleldin,^,'s, savannah sparrow. r.ird eensusrs conducted ty Pepartrien_ personnel and others indicate that of the 114.7- acres of exist ir.E 'wetland in the study area 113.9 of. these acres (99") provide cith.,r hi`h or ' moderote habitat. values. for wetlrnd-associated birds.. 1 -10- ' C: the12.7 acres of historic u?land, 8.7 acres adjacent to mi and downcoast (gcncr_'lly southeast) from the power plant are compo:cd of coastal dune habitat , ' ,.-illow thicl:ets and transition vegetation, and are environmentally sensitive Tursuant to Coastal Act Sections 30107.5 and 30240. These 8.7 acres provide ' desirable habitat diversity to the overall study area, and constitute cpproximately 35% of all remaining coastal dune habitat in northern Oran&c County (the remaining ' rouZhly 65% being located primarily in the Bolsa Chica Ecological Zcsc n-e) (Sec DcC 1952) . The 4 acres of Historic upland located upcoast (generally northwest) frun the poi-__ ;last are no. environmentally sensitive nor do they operate as cffccti.- bu`:c-s to the ,-e.lcnd systc:o because they exist prir,._rily bctveen PCH and activo do:elopmcnt such as Lhe ?over pant and. mobilc ho.,_ IIi:finiticn o t rc's a rd Criteria for Ic'enti : matte. L:etlends ere ecIincd in Section 30121 of thz Coastal :.mot is f0110.7s; "lands within the coastal zor.c which nay be covered p-riociieally cr p_rnz.icntly With -ballo-.r water and include salt•.;ater marshes, freshwater narshc.s, op=n or closed brackish vater rt:arshes , s::amps, raudflats , an.1 feria." We consider the Coastal Act definition of "wi!tlands" to be compatible vith ttie J.!: Fish and Wildlife Service Wetland Classification System and wetland definition. The latter definition and clansification system have the advantage of being wore recdil}• usable in field analysis because the sycten is both hicrarehical and ' ldichotouous in nature, and because the same set of biological and physic:s1 criterin -11— ' is consistently aonlied. We concur with the interfacebutveen the Coastal Act ^wetland" definition and the USFUS definition as discussed in A ndix D of the ' "Statewide Interpretative Guidelines for llctlands and Other L•nvironmcnCally sensitive Habitat Areas" (adopted by the California Coastal Cormission, February 4, 1981). ' ' • The U. 5. Fish and Wildlife Service definition is as follows: "Vetlands arc lards transitional bct%iccn terrest=ial and_ cq::atic systems where the wat.:r table is usually at or near the surf:ce or the land is covered by ' sh2llo•: %race:. For pur-poses of this classification, ..ctlands must hay oic or core of the follo:iing c`:.zc a_tributcs: (1) at least p`ricdically, tlx: l--nd 'y supports prcticr:�_nantly l,yerophyces ; (2) the substrat., is predominantl,' undraincc h}•d_`.c roil; (3) the substrata is nonr:oil and is saturated with ' water or covered by shallow water at so-je time durir.S the growing scasun of each ye::r. ' Wetlands os d:finc<: here include Innis that are identified under other eate;,orics in so::e l.nd—use classifications. For crimple, wetlands and ' farrilands are not nacessarily eaclusive. Many arees that we define as vetlands arc f;:rrcd durir.j; dry periods, but if they arc not tilled or planted ' to crops, a practice that[ dcstroys the natural vegetation, they will Support hydrophytcs. -12- nrzined hydric soils that arc nov incapable of supporting 1:ydrophvLt:s because of a ehanZe in %:ater rcZime ,pre not considered wetlands by our definition. ' These drained hydric soils furnish n 'valuable .recor.d of histo.ri.F. vet.lands,.,.as vcll as an indication of areas that may. be suitable for restorat.ion..._ The upland limit of wet idn,; lb designated as (1) the bovlldary between land with predocz_nantly hv&rbpovtic cover and lend with predominantly cesophytic or xerophytic cover; (2) the boundary b^;::ecn soil that iL 2rcdominantly hydric znd soil thZ-- is p-edo:ninantly nonhydric, or (3) in the case of wetlands ' without vep,ctation or soil , the boundary 1*etveen land that is fleoded or saturated so-= _iaa e=ch yca,- a,d lc.nd the: is not ." (Cowardin et _1 . , ' For rersons invu:vine its :scientific snoc•ir.ess and field test_d n.tur: , .uc have used the Fish cnd Wildlife Service definitieo and cl,.s•ific:Lion s•:stc-m in the prcp:,ration of our i.,p. 11c n:p 2) is esscat Tally tine sane at: the r,.ap ' prepared for our initial report "An L:sessracnt of Ucticnd resources Within the C:,y of llisnt ington Lcacti B^twccn heath Boulevard , and tl,e Santa Aria River" Uadovicli , ' 191SG; Appcndix 3). This map war prcpzr-cd by carcf.:l analysis of zcri;:l photnl;rap!is , and extensive on-site investigation. In our initial re,ort , I.:c ' utilized the zppropriate US'r:..S wetland classification code as nn eleacnt of ezeh definition for Lhc various: %:ctland tyN^: ecfined. The tertiinology and c_fiaition^ ' of :etlinds applied in our initial report -Coastal Sal[�a:.r�ti, Coastal Saltfl::t , ' Frc-h/I:racl:ish W3tcr 'tarsh- reniin the tair.e in this rcnort for case of interpretation, clarity and consistency. It should L-- noted that representative:; 1 -13— of ;l,c Los Angeles District Corps Office, the US:v'S field office in Lagu:+a Niguel , ' t:,c US=IJS P.rgion:l Headquarters in Portland; California Coastal Corinission staffs rrd the Department of Fish and Came unanimously agreed that She definitions applied in o•jr initial report Were compatible with the various wetland definitions and el+,ssification syste:cs utilized by these agencies. This unanimity was represcoted ,at several meetings between the agencies and Huntington IIeach.Planning Departnent ' staff and City Council ambers. 'These wetland ty- es as defined by the Coastal Ac: and the U.S. Fish and Wildlife Scrvicc, are distinZuishcd as follows: Coasts_ Sal' 'S:rrl, — A wetland, as previous!-,- defined, cxhibizin� a w.:tCr anc: asli: g.:cy rr _„=._ which Mai+:tai._.s vcge::.,ion c:+eractcristic of an estuarine s=•s:+-ra. For tlic purpe•ses of this report , the "coastal salt marsh" designation includes zrcc�, which are ai least 30,, vegetated znd where salt carsh indicator c 1.:1ts predominate. Salt narsh indicator plant species inclL-e picl:leweed(Salicorniz virp.inica and S. sub:^ruinnlis) ,alkali head+ (Franl•-cnia gr :r.difolio), salt grass ' (Di:tichlis saica_a) and others (-72G::1?;3 dhg).* ' Coa-.tal Silt Flit — A wetlanJ as previously defined where vc••etation is lnckin•• (00 coverage) ant+ soils arc prorly developed as a result of frequent or relativcly drastic surface water fluctuation and/or hig;ti eoncentrationn of sales in ' tl,c -»ter or substrate (E2:71.3::1/3 eh_s ) xUSFi:S classification system 1 1 ' —14— Fresh/Rrnrkiah v.'nter Mnr�:h— A wetland, or: previously defined, exhibiting a water regime v`tich maintains vcCetation which is typically adapted to fresh or brackish va:er conditions. For the purposes of this report, the fresh/brackish water marst, designation includes areas which arc at least 302 vegetated and where ' fresh/brackish water plants prccominate. Fresh/brackish water marsh indicator plant species include spiny rush (Jencus acutus), sedge (Cvpc.rus ssp. ), bulrushes ' (Sci.rpus ssp. ), cattails (ilnha ssp. ) and others. (E1/E2EMlVZ(MVD(K2/3+dh)* .e Zgain refer to the Coastal Act wetland definition: "Lands within the Coastal ' 7.arc which may L_ covered periodicplly or Darr..an•_ntly %:ita shallop.• water and irzluee salt zter cars::es , fresltu;te. marshez , open and closed brackish water s%::M--ns , rudfl:_s and fens." Clearly, wetlands classified" in this rc-.ort a .d on the cccoepanyino rnp as "cras:al salt marsh" and "fresh/brackish water ' rarch" arc wetlands by explicit it:clusion in the Coastal Act definition. ' ' Coastal Salt Flat" ar^as c'asign:.ted in this report and on the .econpanying mnp --re periodically inundated and saturated on a seasonal Lasis and are, therefore, also wetlands by Coastal Act defir.itiot-. Additionally, it is reason3Lle to conclude that periodicity, as it is referred to in Coast;l ACt Section 30121 me:ins oaten enough to support a dominance of plant species adapted to, or tolerant of inundation, and oft:•n cr.ouZh to largely prccludc the growth of plants which Pre not so adapted. All areas dcsiZiia ted its w•�t lanz s in this rci-ort and on the ' reeompanyin map exhibit ecologic:!Ily do--ni:tant Plant species which are both tolerant of .nd ecpcndcnt upon pci-ic•dic inundation or substrate satu:.lion. ' '�U F;:S claccificalion system ' -15- ' Areas shown in solid black on Figure 2 were referred to as -riparian in nature in our intital report (Radovich 1980) due to outcroppinEs of willows wilich occur in this area (gc«erally inaediately adjacent to YCH). As has been previously discussed, these areas arc more properly referred to as coastal dune habitat . ' Z.nothcr alteration to our initial-map .inv.olves..the .loss of. 4.3 acres"of-dbsstll' :-ori alt marsh adjacent to and up=^2st (Ecrerally..v_st)from .ticwl:nd,.$t.pcet�.and,:itt��nd ' the flood control channel (Mills Land •and•tlatcr. Company `property):'4 This •.zrea was illegally filled and scraped in 1981 by unkno_n persons leaving only 8.3,acres of wetland vegetation remaining and is depicted in Figure 2 and Table 1. In July, ' 1982, the remaining &.3 acres were bulldozed and disced by the landowner, entirely elioir.ating wztl:^d vagetatio❑ on this .1G-acre parcel. This latter aetivi:y resulted is the Co:2stnl Coc-fission initi.-,zing an enforccoeo' rctior., znd cl:.. ratter is prescntly involved in litigation. For this reeson, and l;_causc rccoloni.ati.on of at least 8.3 acres by e;laj;d vegc[a[io;i and/or p^_riodic inundation is likely, the D�7ps:•tmcnz detcrcinez that these 8.3 acres should be mapped arc'. t:ca:cd as vczla,ds in this report . The last significant zlterntio„ of our initial r.,a;) ' involves rcuZhly 3.75 a=res of res_or.blc forncr wcLlands rr.d :nd 0.25 :cres of coastal salt marsh W"lich vrcre locaLCJ tk.tween the rotary ravd dump and the liZht ' indus:ricl use inland fro::i the flood control channel. These approxima.cly 4.0 acres were converted to liEh: industrial use. 1 Eased on th^ d; finiticn and discussion :bovc, the I%e;art;,._n' fia 's that ;here r.re ' 114.7 acres of vctland, 35.2 acres of former ca^tland vhicl� have been so se:•ercly ' derraded that t►izy no lonZ•er function :.s wetland, Ar.d 12.7 acres of historic upl.-nd in our 162.6 acre study area (Fifurs 2 and Table 1) . . —16— ' Tktc:nination of Derradcd l:ctlands ir;ciLher Section 30121 of the Coastal Act nor the U.S. Fish and Wildlife Service wetland Classification System define or discuss "degraded wctlends." llo::ever, Y%C ' Section 30233(a)(3) recoLnizes the existence of such are.-s•, and states that these eras shall be identified by the Department of iisji ano uaac. Implicit in this ' nzndzte is that the Dc?artrien: oust define "de-rzdcd wetlands" since urdefi.ncd arras cannot .be identified. , ' -i'zz word %`cgradc" has several uefinitions . Some of these definitions are e:trer:ely ne-'ativc and, therefore, inze.ceu::tc to enable this Dc?artnent to callhz- $ = tale sl,rnificant vildllfe .iica cX:Gt in =ny "ec-rnded vetlands." ' T.lerefCTe, fren the various dcf:..:_.e::5znvailablc, we h:vc con`iu--'^d the;, the fe:lowinZ definitic-n of the ter "dC r:ded wetland" is as ecoloEiczlly accurz:e a definition as is passible: ' DeF::deJ 4lctland -'A vetland which has been altered by can there,!' of some physical pro-erty and in w1nich tl:e zltcrctio:i liar resulted in ' reduction of bioloCiczl coripl_xi:y in ter,.!s of species diversity of :�tlanc- associated species which prc•iiously existed in the vetland area. L'c col,tiasi:tc that this definition is to be applied o.i:y the alter:Lion is ' icduced by man, and is not mcar.t to ipp;y to natural succession frc-i a co...1plc,: to ' r .rc si:-.pIificd v:ctland coWr..unity. -17- fs has been previously discussed, 149.9 acres in our study area (92Z) were ' historically wetland. This historic wetland urea was tidal in nstur,:. These r`_tlands were once populated by a highly diverse compliment of o_ganisms wiiicli ' inhabited a diverse assemblage of ecological co:_vunities similar to those present today in the wetlands of-Anaheim Bay, Bolsa Chica and Upper Newport Bay. Today, e=isting wetlands in the study area are ,esscntirily non-tidal in nature. Fish, ' rt,lluscs, and other marine -and estuarine organis:as have been largely eliminated. 114.7 c,:res of existing wetland is populated by a less co^?lea group of , e-oanis-ts ti-n that which previously existed due to the impairment of tidal and fres}:•:ater flog by construction of dikes end PCH (in the study area). We find Chat ' C_­znc 11=.7 --ores of vctlands are dcCradcd. t_•ctl.nds c_tcrmin:._ ion is not r.:ccct to i:.:pl}• that thcs_ r.cn-tidal do not provic'e significant wildlife values nor [h:.t tht-y are no: highly r_oductivc. In facL , p:chlewecd-eomin;ted salt marshes trc a:aong the n-3st 1 r rro:uctive natu. ,l plant communities on e::rLh. Althota-h wa ,lave not ec•n','uctcd e::tensive t3e_-sure-,2!nts of productivity in the study area, preliminary ne_sure:-:^tc ' e_ iducted by Department Fcrconnel in 1979 indicated a net annual productivity on t:.e order of 1500 Z. dry vt/n2/v: in the picklc-aecJ-donin..ted salt rrnrsh of t::c r.tuCy area. We craph:sizc that this figure is noL definiti•:c duc to the cursory c-ature o` the study. llo::evcr, this figure is compctible with t;rc findings of c--cher t-e,lanJ ecologists on the west coast. In gcuierjl, Salicc•:,"i.a-dc+:ninated high sal : ' r-.ar!lh in restricted o_- non-tidal vctlands ezhibits a ma,an annual p7oduct1vity of t-c•tvccn 10X^ and 2509 g. dry wL/❑2/}'r (Filers 1900) depending upon the rrctheJ o` ealculatiou used. ' In addition to the fact that the subject wetlands appear to exhibit high productivity, the Department has docun-anted high and cioderate habitat values for c:cticnd-associated birds on 113.9 (99-') of the 114.7 r.cres of deiradcd wetlands. ' The s:rthodology involved in this finding consisted of utilizing data accumulated through field survey by Department personnel and other sources (Soile , 1980; Cal Trans, undated; City of Huntington Beach Final EIR 77-5 Hassey, 1952; Massey, 1977) to evaluate degraded wetland habitat in cep: of species richness/ diversity for wetland-associated birds. Since these degraded wetlands -presently provide significant value to wetland-associated birds, and in te:ios of annual net iproductivity appear to be highly productive, the Dcpa:tmcnt fines that these degraded wetlands arc not so severely dd.•Uraded that cipjcr restoration efforts arc required. F.estoration of l?ctlands within thr Studv Arc. restoration and enhanccm_tit r..c.:cures in the study area would involve reescnblishin:� tidal influence tc the area. The methodology would L••: to place culverts with tcleetivc grater eontral structures (flap gates, slid_ rates or flashboard rise-s, ' etc. ) Letwccn the wetland arczs and the tidally-influenced flood control channel vhicla runs the full lcnF.th of the study area. Minor im,rovemcats to perimeter levees and rginor channel c7cavations , to improve water circul::Lion in the restorer area, vodild be highly dcsirabl-2 and ticccssnry in som, Zrcas. A ncu lcve.: cf minor •height nay he need:d to protect the 171.1 corner o; the Mobile Notre Fark if control :cd tidal waters arc allowed into the iidjaceiit area. i . ' Conclusive evi.c:cnee of the feasibility of establishing tidal influence to the study ' 2rer was denonstrated on the IG•-acre parcel Lrtveen Brookirurst Street rnd the Santa Ann River. :!ithin six months after this area was exposed to tidal action, a large Lnd surprisin;;ly diverse cou:ple:n=nt of fish and invcrtebtr.tcs rccalonizcd this area. The California least tern fed extensively on forage fish such as ' Gosquitofish (Cambusin affinis) and tops::clt (Acherinops af`inis). O:her fish collected fror the site included: California killifish (Funaulus parvipinnus), ' st2Shorn scu.lpin (Lcotocottus arnatus) , longjzw mudsucker (Cillichtl,vs nirab:lis) , yellovfin goby (Acpncho7obit.+s flnvin?nus), arrir.4 goby (Clevelandia ios) ; kelp bass (7,:ra1ahra:: elachrarus) , barred szndhass (Pzrn!:rbra>: r.rbulirer); Califcrata lraliLut ' iciiftys cal ifornic•.+.-.); Oaaleyc (Girelln ni,ricans ) and shiner surfpereh (Cvn:•(egsstc- a ,tircp.at.). Invertct•rntcs included ghost shrimp eclirrrnie.n.sis) , jac:•:nifa clams (T:;el ,s cnli_o:r.iir.us) , little egr co�:,Acs (L=cvienrdiu!n substriatu-+) , bay mussels ('!L i ius edul is) , bcnt—nosed cla+l nacuta) , co:r.:n.n lir.tlenec;. clanrn (Pr .totha_ n+inca), st- i-rcd shore c ab c.rassip..=) and a crab of the Eer.us Cancer. A, di:ionolly,; thi., ..:e:. a+as a valuable feeding 1nC restin^ site for shorebirds ind <<eterfo::l . Lccstablislinent of tid2l " flushing to ether arcs thro :Zh in:;tallati.o:i of culvc:r_s bcLti!._cn the flood control chana.^.1 and wetland arras to Le restored, would result it. rapid colonization by t ;c above %acnt ioned species and others r.s wcl l . Care must 1•. exercised during the eVo!ution of such a res;o:nLio� pl.:n to nir,irii:.e :any ncfr.; i :u ' IMPacts upon the endangered Belding's savann::h sparrow. This could t accor..pli:::+t•t by maintaining a sufficient complcmcnt of Sal i corn in domiootcd high salt mar-h. Additionally, the existing role of salt flat areas in the production of food fur' -20- ' vater-associ itcd birds should l,= maintained. That is to say that some s:asonal ly flooded wetlands should be maintaincd or created. The portion of the study area (5.0 ac.) west .of Bcach :F,rulevard., .eonsisfs :of •p.a ' acres of fresh/brackish water marsh and 4.2 acres 'of• fort-1er wetland •rnd' upl:lnd a:of which I.4 acres are restorable as wctlandt_,The 0.3-acre pocket of freshwater ' wetland has been degraded beoause of its reduced size, conf:Curatioa, location and overgrown condition. In order to effect restoration of Ois wetland such that wildlife values are improved, it would be necessary to both expand its si:.e and decrcasz the ratio of vcget:,ted to non-ve.-ct3te4 wetland. In this regard, it Would be highly odrantZ-toes tc create r.on-vcZet•^tcd orcn-alter --ca of reuZhly a 4-foot LcP_'h. 'alas ti-aoo. 1'e-zh would b•_' :,dCr�1 �C to la—rly invasion by cattails. L..Ltly, the :Ietlan-' i.i this arcr. should 1•c fend-'. ibis f:rs;:c.atcr :re_lsnd coul:' feasibly be restcred to 2.2 ac (0.80c of c::istirl, ' vc'land iud 1 .4 ac of restorcblc I.:SLOriC wFtland). However, if o.fsi(e r- tiratiun is decr.ed r.ccc_ ...::ry for this fresn:,:.-,cr poc,.ct , tic f:,llo;!ing conditionn must be_ wet: (1) COIItirIOC to alloy freshwater u:Lan runoff fro:a the trai lc•r pars. to flow to tl:e wetlands southcnst of Bezrh Loulcvard. ' (2) The new- mitigation site should result in creation of ct leist 2.2 ccres of vctl:mis which is presently the potential re.tof.u31 ,n -crcnZe onsitc. 1 . ' -21- ' (3) Th2 site chosen gust be non-wetland in its present condition. (4) The wetland design, location Lr:d type (i.e. freshwater) must bye approved by ' the Department. . ' reasibility of Rectorin,; and Fnhancinr Wetlands-within the l:untinpton Plcach Stud%. Area 1 Pursuznt to Coastal Act Secticn 30,11(b) this Department is authorized to study ' deorzded wctlznds. Once this study is initiated, -,:e are required to address ' essentially three eon.sidr.roticris. 7hegc considerations are discussed below. ' 1.. Section. 30,1: (b)(1) ' This Coastal Act Section req;-.:r.cn the Departr..en; to determine vhc:,`rcr major. restor:.tion efforts v-ould h•_ requi;cJ to restore_ the identified degraCCC ti:•_:- ' 1andC. We find tlrat major restoration efforts are riot required for the 113.9 acres of existing ":etland located south of Beach Boulevard. These wetlands ' could easily be tnh:r,ced by vecLtablishing controlled tidal flus►rin;; due to ' their existing low clevation (less than 2 ft. .MSL), their ierncdia:c aJjaccncy to the tidal waters of the flood conCrul channel , and the de-monstrace" cone ' and *efficiency with which this vater may be used for •restorative purposes . ' With respect to the 0.8 acres of existing vetland located west of 5cach Eou)cvard, the Ac;-:rrtm•!nt ti.as found lcw.usc by w':tl:.n'!-ascociatcd' birJs on ' this parcel. tfowever, we find that it still furct ioji:j as a freshwnter =rsh. 1 '•22— 't zppears that its relatively low wildlife use is associated primarily with i:ts t*.all size and its overtrown condition. This vetlana area could be 1"hanced by increasing both its size and the ratio of open—water to vegetated wetland areas. We find th!t these restorative mcanures arc all ninor, and therefore, can be feasibly accomplished. l'e•note that the study a{ea affords a tremendous opportunity for restoration • y of historic wetlands. 01 the 31 .2 .-acres of former uetlends located southeast o` teach Boulevard, the Depat•t-ment finds that Host of these (17.6 acres) tou,:, be restored in conjunctior, with ertiancenent of the existing wetl:tr.ds and would co= entail a rtiajor restorative effort. Foy- the above rea sons, the De,c:treat finds that 114.7 acrt•s of vc:lay:d can 1 _ restored vithc ut major res:ora;ion activities. In .dditior., a potentis 1 C?Dortunity exists to restore zpprcximatel J 19 ._cues ( 17'.G zC. sou,h.--st ca f 1 .4 z:c. test of reach ^lvd. ) of former t:etlzr.ds. I r B. Section 30'�11(b)(2) :he consider2ticn mandated of this Department pursue-it to Coastal net Sretic.n 33411)b)(2) speak; in tercis of wininum and ri:r.inurn. It is obvious to us t!,at a boating facility can be of sufficiently spa;: -imc th:lt a restored wetland area meeting the nininum 75*4 area requiremi.nt of Section 20411 (b)(2) can he maintained as a highly pro,'uctiv•,; wetland in eciijunetion witis such a p:ojc-r - VotuithstindinZ, this findinr•, the Deparuner.; believer. thz-t a boatia�• fici ! it ; is not a feasible_ use within t:ie study area , and C:,;t boating facili_y is -23- ' least cnvironu�en:all damn,-ine ncins of enliancin or restoring the not the lc y � ., s S ' vetlacids due to their pror:imity to the flood control channel rind the apparent case with which they may be restored, C. Section 3001 (b)(3) ' rursuar.t to. Coastal Act Section 3b411(b)(3), the Department is required to determine how resto:ation and enhonccnent of dcgzaded wetlands can most feasibly be achieved. The t^_:m "fcesiblc" is defined in Coastal Act Section ' 301C0 as follc'as: I ' ' Fcanihle - Ccpable of being ecco-olish:-d in n successful raarrner v.:Chin rcasonzhle ycric:'. c` tir.:-_ t:r:in- into accounr. econoz-ic, environmental , ' social aad t^chnolo-ical factors. ' !s in?icatcd previously, it is our conclusion that f_cx: a teclinolcgiezl as vell as i ' cnvironmcr.ral p^_rspecrive it is pe�-,iblc to swiftly restore and enhance tlic existing • e:landn as descriL-ed. In addition, Coastal ;act Section 3C101') requires ' the ronsitleretion of social and econoi.ic factors. Since the r.nalysis of the fcasibility of 1-eseeratic.1 activities in acgradcd .:ctlanJ areas is requi:•cd of this ' Ucpartt.,cr,t pursur•nt to Section ?3!,31(b)(3) , it fol lo,..•s that tine Dep artnent nnust CO'Y.e fcasib1licy daterr..inations basal on social anj ecotio:r,ic factor_ as well as environmental and technical factors, 'What is meant by "social factors" is not precisely cicnr to this Department , ' however, after careful consider-,-, io:i we conclude that flit- only poccntinll} 1 • . —24— And arguably social effects of wetland restoration in the study area appear to ' relate to flood problems and mosquito production problems. Considering the existing potential problem of flooding, ttic Department believes that if culverts with selective water control structures as well as dikes were constructed to protect the trailer park' PCiI, where necessary, and perhaps Beach Boulevcrd, the existing threat of flooding could .^.ctually to eccrea:ed. These dil:ts would be constructed in association with a restoration project and i:ould ' effectively and safely increase the potential storage capacity of water in the subject r:rea. This increased storage capacity could involve several hundred acre-`eet of water which under existii.; conditions r..i.-ht cause donage not only. to inc areas identified above_, but also to res ider.t i-,1 zn3 cor.::re i al uses loc;.:cci ' inland frog the flood control channel . ' If anprop:iate dihink and selective water control struc:u:.s ona culverts are u: cc:, f ' tf.c Dcpzrtra�znt fines these restoration activities feasible.- takir.,- into cccournt LII-:: social f.-ctors associated with flood threat . rho Dcpz:•tr.cnt finds that the restoration project ovtli.ned sbc.ve (%:'oicli ' incorporates increased tidal flushing and the est.:hlishment of a considi::cbly mot coM;l:x groL;+ of m.rii:c arJ cstu:.r:r.r-oriented orZ:nis.r..;) would cffccti"•:ly ' decrease mosquito production. The coui,,ined c. fect of incren::ed salinities anJ Corc constant water regiine would allo•.+ the presence of year-round active niosOuitc. ' prcd.itors (California killifish , tops:�cl[ , Cnnhusia , ctc. ) and would tcnd to ' eliminate those environments wherein cost mosquitoes thrive (Kcynolds ,' 1933) . Therefore, the llcpartn:cn[ find, that Elie* restoration activities out l:r.cJ ;,',O...0 arc. -25- ' feasible takinC into account the social factors associated with mosquito production. Regarding the economic feasibility of wetland restoration, -the Department concludes Chat activities specifically related to restoration voulc.' be relatively inexpensive to tcco.raplish. Such activities could, as previously indicated, include such minor restorative measures as the placement of culverts, li mi tee chcnnel i cat ion, and ' erection of neccasary peripheral dikes . ' In summary, based upon the stated reasons, the Dcp--rtr..cnt concludes that the restoration plan cutlined above is •feasible as the terra fc•asibilicy is defiree in S=ctio[: -):-OS o: the Coastal Act, ' In P..dditicn to d=to:ninin; the feasibility of v2zlan3 restoration , Section ' 30411(b)(3) requires this Departtnciit to dctci-3inc if tine -.ost feasible rn.cans o: rest c,.-:tion involves a boating, facilities p:o-cct or vhether thf,re .-rel other ' feasible n--zans o: restoring wetland valves. In responding to Coastal Act Section 3W.11 (6)(2) , the Dc,3rt:nc-.t has a17c:idy dete-nined chat a boating facilities ' project is not the most feisi.ble r..cans of effecting re::;oration. This is based upon the de-onstrated case, of restoring wetlands, by u_ ilizing tin_ adjacent tidally-influenced flood control chnnntrl in conjunction t!:th seleczive vater ' control structures. Therefure, the following discussion sh,ll eo:isider other of restoring and enhancinZ Wetland values in the stuJ)- area. ' Fotuning upon that portion of our stud nrca bct•.ecn hcich r.oulevard and the S n-:, Y - ' Ar.; !liver, there arc (as previously indicated) 11.G .,crc-, of restorabic fo:,.:cr -26- ' ve2lrnds (tnking into account the environmentally sensitive nature of the 2':9 Ceres Adjacent to Brookhurst Street and our desire to retain these 2.9 Ceres as upland). Of these 17.6 acres, 6.7 acres arc owned by the State and 10.9 acres are in private ow-M-rship. Of the 14.5 acre3 of non-sensitive, non-restorable property located ' between Beach Boulevard and the Santa Ana River, 4.6 acres are in private ownership and 9.7 acres arc owned by the State. Of the 10.9 acres of restorable former i Fetlard. in private ewrership,• 5.1 acres do not appear to be 'devclo?able since they are scattered throughout the study area, consist of small parcels, tnd arc ` Femcrally contained within existing wetland areas. Additionally, there is a 50.3 acre area aejacelit to ile•.rland Street of which 4.3 ncres were filltd and scraped in 1SSl . Althou.-'.1 these 5.8 acres am nod presently wetlands, they are nor.eth.::esr, easily rcJ:orzb!c ns weticnds. Cn the other h_nC.*, al : 9.7 zcres of non-sensitive , nt n-rastoralale r_oper:y o::ned by the Stacc appears to Lc developable and desirzbly ' Iccated for eevvlop~en: because noose 9.7 acres .front directly 0.1 Pacific Coast )I:., ay. For theca reasons, the Department reco7_-;ends the fol owin7, r:ans of f Icas_bly restOrinE ane a nhznc:ng wetlands vn1 Jes 4.1 the .ire:-. bctvccn Bench ' Loulcvard :nd the S:.^ta Ana rive:. 1. l:estore and enhance 119.9 _-_res of existinZ vetlacd. Shr.cifics of this restor.:ticn concc-pt vicre prc:•:ieusly discunscd. 2_ Restore tl;c 6,1 acres of rcctoral,le forrcr wc, l.nd ol*n_d Ily the State . This tacrearc could be easily restored as a function o` thy_ re<taratio:l plan ou' 1 :::-!d previously. -27- 3. P.etain and enhance the existing 11.6 sees of environmentally sensitive upland hzbitat all of which is presently in State ownership. 4. Arrange to exchange the 9.7 acres of state—owned, non-scnsi.ti.vc ' non-restorable, and apparently developable property for all or portions of the 10.9 acres of restorable forner wctl•--rd in priv,:tc ownership. These 10.9 acres ' would, by virtue of their-,elevation and location, be alnbst effortlessly , restored in conjunction with restoration and cnlinn:e^er.t of other restorable tand existing watland areas. 5. P•crnit cevclep:::_r.t cf the 4.6 acres of iron—sensitive, non—restorahlc prrp2rty ' :n privc_r c...;Icrship. Shiftln focus to the portion of our study crca w_st of Beach Doulcvare,, there are 0.£ acres of e:isting weH3nd and ar, additional 1.4 acres which nay be c::_ily ' 're�;ored as : etland. As previously indica-zed, the DeporLmen: considers C.t-•s1LC rr:tor:tion of these 2.2 acr<< to be feasible. In tv�:moo:y, estnbli b:nenc of an upinnc/•.:eland crosysLera of 126.3 acres consis, in:, bf 114.7 acres of %,:eLl and and 11 .6 acres of envi reri-cnL al ly sc.ns it i ve si:Icc Lhis s.•stcm is presently funeticninZ t•itiiin th,-! :tudy area. It cpp+cart; that it is feasible to cc:ablish an upland/w%.Hand ccu:ystcM of r.,uch 145.3 acces in si:.c consisting of 133.7 acres of wetland and 11.6 acres of tnviro:u.icntolly sensitive upland if the five stcpr. listed above are follovcd. This Course of action %:ou:d additionally re.nnit in privarc d^_vclol :�cnt of 14;.5 ncres . -28- bctcccn Beach Boulevard and the Santa Ana ..aver and 2.8 acres of City development within the 162..6 acre study area (Figure 3) . Lastly, regarding the 16.4 acre area boundee by Newland Street, the flood control � channel, and the fuel storage facility, this area involves special considerations. As pre•:iously m?ntioned, ,8.3 of these acres ware recently t i l.led and are involved in liti_,,ation,, A further 4.3 acres of wetland were filled and scraped in 19S1 , without benefit of a Coastal Dcvcicpaerit Fat-�i[. Assuming tli::[. this 4.3 acre arcs is not recolonized by w• tland vegetation, or toes not etherwisc reest:blisl! itself r.s a -erl1r:d in the future, and further assu:ring d-zvelopment or a_?1 o- portions of ' t1,e 5.8 acre orez near Newland Street (.of w.iich the 4.3 ncre urea is part) , then restoration of the balance of the 16.4 acre p:.rccl be require3 as c ccr.d.itio. of zny Coz.tal DcveloY:^cr.t Perrin .ppro•:ed for e^veiopm—in= of all a: portior,:; of the 5.6 acre arec. This c:)ncludcs our formzl detcr:ainations for this arez tc CO3�tal ..ct section :1J411(h). Flcacc krow the Departia:>r,t rein :n w;ilcu.i to anzwc, eny ' ruest ion concerning this report . 1 _:nJ C etc CI Iv Co..-,..'/ "1^ci Control D:'tr!ct .. .I' G :1•or F 1 CI'. o: I;•s:1r,:ton 9rec.l f� .40 ��N- 1,11 /� r ^ �, ti/ '• ,,1 J '\ • \ O ^` C' \` \`\ 'I �t � �i�'��� :•>''/�•+•'..'�'' ,i off"✓ � ��';. 10.1 I\'\.\\ _, \\� LIB.\^ `'�': ��r�'�--!'•f•^ t,�•r r AP,i \\ ri-0'.••.\ PC1�Y^fi:'e -30- 1 Pv FE=E:ICF:S ` California Dcpartr..ent of Fish and Came, "Env ironmcntalIy Sensitive Areas at Bolsa Chica", submitted to California Coastal Cor.-miss ions , June 3, 1932. Corps of Knincers, U. S. Arry, "Preliminary Cuide to Wetlands of the l•:est Coast Stctcs; U- S- Army Engineer 6:atcrways Experimcnt Station, Environmental Laboratory, Vicksburg, Mississippi ; April 1973. C:-.:crdin, Lewis, Virginia Carter, Francis Colet and Edward LaRee, "Classification ' of Vatlands and D::cp-'aatcr Habitats of the United Sratcs"; U. S. Oepart-ent of the Interior, U.S. F►sh ano i•Jildlitc Ser•.ice, F' .IS 365-79/31 Deccmaer 1979. Eilers, •ll. 1', , "Production in Co..-;stal Saltmirshes of Southern California", U.S. 1 Environn_ntal Protection Agency. 1960. }Iu.:inZton Rdac`►, City of, "final EIR 77-9, Ceneral Plan Amendment 78-1" (Prep-ared by Westcc Services, Inc. , 1915) Een_ington Beach, City of, "Hunt-in-ton Beach General Plan - Coastal Element", L;;oust 19SC. 1 ?:_ plc, St.rve, :%ild:ifc Hanavr/ iologist , California Department of Fish and C: a, Bird cer_sc:ses, 1973, 1979 , 1S.':0. T. F:. , "Evaluation of Wc; lZnd. --nd t:.F.tural resources Values Adjacent to the Sout.'.c... t Cal:.forna Edison. Plant , Hont;n;;ton T-c:ch, California," Dep.:trcr._ of .-Fish and Game 'l:cp.r , 1979. 1 t:zsscy, Barbara, "A Census of the hrcedino ?o;xrlatioa of the Belding' s Savann::h Saerrc:: in California." Submittcd to California Department of Fish and ' Final P.cport E-1-2, Study IV, Job 1 .2. , 1977. / 1:cnsvy, B:rbara, "Proposed ?iitiEacion for Loss of Califorcza Lesst Tc:•:li Fecdir., Hzbitat During Construction of Flood Control Improvements on the Santa :.. _. ' River" OranLe Coounty Env iro:•.m-.zntal M.an,!3c-ment Agency, 1978. 1'3-sey, Barbara, Person-1 'Com-unicc:ion, January 1982• 1 U.atelson, Uelen, "Preliminary Environmental Study of Excess Parcels in i tsntin;,ton Beach California"; Uepartmcnt of Transport:,: -on, undated. 1 Vnvig,at ion ant-1 Occon Development , California Dep.-.rtment of "Comprchcnsi vc Oct-.:, Arcz Plan, Land Usc - Coastal"; Shot Ilum!)cr 99 of 127, Aaiust 1971 . .;avicl:, 11r:rold, Wildlife HnnnZ-�r/Biologist , Cclifornia Department of Fish and C•:::-_ , 1 Species Inventory, 1982. I;z.aovich , Robert A. , "An As!�cssmcnt of Wetland i:csourccn Within the City of lluntingtori peach iso_twcen Deach boulevard onC the Santa !.na P.iver: "Depnrtr:cnt of Fish and Gone, 1980. 1 -31— re nolas , Cn,-y, MoloZint, Orange Co;tnty Vector Control District , Pcrsonsl Conrnunication, rebruary 1953. Souic and Associates. "An ccological study of certzin propertics ou-ncd by trills Land and ldater Co. and the State of California in the City of Iluntington Leach, California", for ldi l is Land and ldater Company. 1980. - Spcth , J. W. , et al. , "The Natural Resources of Ana`icim nay"; California Dcpartmcr.c of rich and Cane, Coastal Vetland Series No. 16, 1976. Sully, John, Dioloois: , CA Depsrtiecnt of Tra,nsportr•ti.on, Personal Corurunications, January 1962. App en4i:. 1. 1:7t ^f k•C::.{�nd Plant ^;;ceies �:^_ 1Cnt •.'ithin til^_ i U 1Ci ly'_�:1 WCtlnn'l Species i + LtndC: 1C:• L^cCtion ^•Cat �$! C LCrr l�� Lc.r.cr.d 1 f .o of Califcrnift 1. Snntn Anc river to ^el_h:17 St. 1 8 10 1 virgin;ca . i 2. Brcc'rhur3t St. to Nagn.clia St. 1 3 4 6 8 11 2 California lmbtcrr�naZia ' i i , 3. En,t of Peach Blvn. 1 3 8 9 12 13 3 craM%<er.i, rrc;-•ems;oZic • ? 1 y cf Funtin8tnn B^_a_h 1. 'rest of 3^_ach Blvd. 1 3 S 6 7 8 9 4 Jmcuo acut:4e 1 th^_rn California Edison 1. Wcst of ;,ngno1"a St. 1 8 S 5CMDUS olncyi i 1. Z.ist of Nngnol.ia St. 1 3 8 , 6 Scrip!jo califorr.icvc l , • F 2. l"cst of X lgnoiia St. 1 3 4 12 7 Cyremc cp. ` 113 Land & weter Co. 1. North 7nl cast of the flop control chr.nncl 1 3 � 8 i,`icttichl:o crica`Q 2. Vcst of th^_ flood contr^1 1 3 9 tp. I chr.r.ncl � 10 puppia ,raritv-a 11 JCz--:ea carnosc 12 . Scripuc rc'uo-tuc 13 Cotula coror,ipi;oZ a .his list is r.^t <.nt^_nd21 to be b,-rat`h^_r relres^_nts the most com.on wetland i.nd-Aleator species prea^_nt en August 23, leoi.. v^_g^_tenon i a rc,ult o)' 4iccxCV. ' ' —3 . !.l'I'ENDIX 2 y T,IRDS OF TIV: 1:UNT1 NCTON l;rACH 1'FTL,,I:DS These bird species are knou-n to occur in the subject wetland area. Thn faller; inB IjFt is not intended to be exhaustive. Tlrc list is Lased on rctual field observation by the Department and other reliable Fources. . 1'adina, birds: ' Crc:.t blue heron . /!rdCA herodias Creat crrct Casncrodrus z1buc Sno,.y egrcl t hu I n - Cattle cErct babelcu_: i:"s ' Black-crowned night heron t:.•ctiro-r r•::ticor;ix Surfacc ducki Ballard LnRG 1'l Itvrhynchos tornccrn Pin;aii /.nas ;c,:tn Crcen-vinged teal Anns erect.n ' blue-winked teal Tr,ns discors Cinnanon teal /,n:•s c•:annp: era /•roerican vigcon Anns vn_-icnn:, Northern Shoveler hr.ts :l 2: a 1 Diving. du:l:s ' Lcsser s:zu;, /,;rho. P ff Surf scoter lie l:.r i c t : , , _t c i '. l n: n bufflchrzd F•u—CC l,71 . :I; ol+ S::ff-tailed d:.cl:� � P.uddy du,l; (1::�ur• j ,a:nicrnsis }sites , h:%,•l:s , falcons (observed foraEin,• in --ct) anJ areas) Black-shuuldered kite Elznon cperr,lrus F.cd-t.:ilc•d hawk Y.u'cr,-j.ir rir_r•., PorLbern harrier Cirrus rva:,^ur. Amcric:n ]:cstcl Shorcl-irds Scnipalmatcd plover Ch.radriun srm; r�lm:.tus ' Ki l Ideer Chnrr,cIri a Llack-bellied plover Plug : lis :.q ,r : , cl : Long billed curlew Numrnt„y ' k'hinl,rcl h ,11u_ nl,:,;ulus Wi I Iet C:,i Opt rrl,:,r,ru . .c rnr 1,.1l1:1,tun Greater yelIoulcgsmcl : r,nlcu:r,- 1 . —34— snorcb;rds Least sandpiper Calidris minutillg L►unlin Calidri:_ a!p:na Vestern sandpiper C:.l tdr i s ma tar i Yarbled rodwit Limnca fedoa y American avocet r:ericana : r Tlack-riccLed stilt I�tr,:intopu:: eu ::ie::r.us f:cd-necked phalarope I`Ital:,t•onvS to:-i;us Do;;itcher spp. Lictnodromun spp. ' 1•:ilson's phslaropc PhPOnrol•tts tricolor ' Sanderling CaliAr�: alt,� Lesser yellow:crs �1'rtn^, : 1:1vaIP"s Lesser golden plover Yluvtali - cm.iinica I Spotted san6pi;-er Act it is macttl:aria ' i Carl 1 s and terns Western Tull l.;.rus occ i dont al Perrin- guil Laru5 arnentatus l California, full Larus cn I fortiicus l Fin--billed gull Lart;s dcla•:arcr.cic I Bonaparte'!; bull Lz-L:f� p!t t l acic•I r,:-t a }lec-man'n Tull Lar0!: 1.c'cranr.ni � Torstcr's tern SteriiA forszeri Califon::a least tern Stern: rant t 1 la:u- brot.•r.i I Caspian tern Sterna c<<;pia }:iscclla�euuS v:^tland-rcl:!tcd specief American coot Fulien omericsrta I Leldin;;'s 5zavznnch sparrow Y:r.scTcult:n :ac: ichctt�i s b-]di ^i };ed-.,•inl;c3 Ll:.tkl.i-d /•l;r I::i u� T,;tc�cn;ccus Eared Grebe I'odiccl•: nigrtcol l : s Double-crestel cormor;..it 1'h;,lacrocoraa --uritus ' telted 1:inFfisher C^rule alc.o`• Earsh urcn Ci:totl,aru: Yit.ccl:anr-euS tl-^cies tint directly related to •:c•t1:-nc: habitat Fourninl; dove Zcn:tic!a rlacrot:r:, lmcric.-6 crow Cotvus ht•.ic ItvrIt•fnchn[ I No.rthorn nackingbird l:irit.s I'ol v;.:ot r us European starling fiturnUS vrt;r•.nrtn t F.nClish sp::rrov I•ars,•r do::,c! t ices Postern r..tadowlzrL S:urnrl ! n^rlrct .t ' Ilouse finch Cart-c.cIncuc m:•:-tc.•tous Ancri can roldfinclt Carc:ut•l t S t r, r: t Lcnscr goldfinch C,rcnclis l.s:,Itrt . ' Song sparrow 1;^lnr.htza mclurlia . Cliff St+alint.' llirundn r.yrtltnnuta L'arn swallow Ilirundo runt tcn Violet--teen saalln,t r - l:orthcrr. Roti;,h-tirir.Fcd sv.illov Stcll.idop;crvx scrripcnnis -. T ' Lankr.v;llo:; l:t 1•Aria rini;;i3 l,nZrcvht•ad sli:i kc Lani u! l tier+:i c t ant+s t:orthcrn f1is:cr colaptcr cura:us inn.^.'s hu::�iuES:rd Calvptc ,tnna Flack phoebe Sayornis nir.ricans Yocl: dove Co 1 u::il,a l t v i a i:even Corvu� cnr>>: � i Vnite-crowned sparrown onotrichia leuconhrys I ' Water pipit Anthua <pinoIctra Yellov runipco vr.rblcr Dcndreir-- ­yc:r.ata i Erewcr's bl:,::l:bird L•uph:,)•,u:, c.•:,stucclgh.11ul ' Lrot:n tov'.,cc Pipilo focus i 1 1 I 1 i CN 7 ., � •• •`�: �. `,i`;'\• ��I: •,� `+' �.•-. \\��;/ter 1 1 Z. N. .. . .. .-: , •:."� ,. .:ill �, f �\\ ��\. 1 4.3 J - '-",;;�:. ,-r.'f�'�,r,:\:\ � - o emu" ., �• i ' CO ^ �••F ill;f'(!`,�' .'•l.�•; •-.�`,i• j• \ i' ' N �\ :l, t l�l '^�: ;tip ``-�.•:1� ,: % pro .'`��ti`'. �\�::t?'� ` �`��21 •,. ,•\• t �•� I�, \ It oc r`J �'J.I._..�']1!�`t..l.'\t•t.:�1`.i:1`l•j•t'S,ir:.'I.. .IU_� N f :�,1• (( �. I�:� :'.\ill's ,.�ur•�.�!• ;,-.a fir,:. _..r,),1,.,•lu\\•t�. •� - • m x 0 z w a IL a WETLANDS DEFINITIONS ' The U.S. Fish and Wildlife Service defines wetlands as follows: "Wetlands are lands transitional between terrestrial and aquatic systems ' where the water table is usually at or near the surface or the land is covered by shallow water. For the purpose of this classification, wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes; (2) the substrate is predominantly hydric soil; (3) the substrate is nonsoil ' and is saturated with water or covered by shallow water at some time during the growing season of each year. ' "Wetlands as defined here include lands that are identified under other categories in some land-use classifications. For example, wetlands and farmlands are not necessarily exclusive. Many areas that we define as wetlands are farmed during dry periods, but if they are not tilled or planted to crops, a practice that destroys the natural vegetation, they will support hydrophytes. "Drained hydric soils that are now incapable of supporting hydrophytes because of a change in water regime are not considered wetlands by our definition. These drained hydric soils furnish a valuable record of historic wetlands, as well as an indication of areas that may be suitable for restoration. 'The upland limit of wetland is designated as (1) the boundary between land with predominantly hydrophytic cover and land with predominantly mesophytic or ' xerophytic cover; (2) the boundary between soil that is predominantly hydric and soil that is predominantly nonhydric; or (3) in the case of wetlands without vegetation or soil, the boundary between land that is flooded or saturated at some time each year and land ' that is not." (Cowardin, Lewis, Carter, Golet, and LaRoe, Classification of Wetlands and Deep-Water Habitats of the United States, U.S. Department of the Interior, U.S. Fish and Wildlife Service, FWS JOBS-79f31 December 1979, cited in Fish and Game report, pp.ll-12.) The Coastal Act definition is as follows.. ' "Lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens." (Public Resources Code § 30121.) A degraded wetland is defined in the Department of Fish and Game's ' report at page lb as: "A wetland which has been altered by man through impairment of some physical property and in which the alteration has resulted in a reduction of biological ' complexity in terms of species diversity of wetland-associated species which previously existed *in the wetland area." i V X G W a a a huntington beach department of community development srAff EP OR iTO: Planning Commission FROM: Community Development ' DATE: February 7, 1989 SUBJECT: ZONE CHANGE NO. 88-18 (CONTINUED FROM OCTOBER 4, 1988 PLANNING COMMISSION MEETING) ' APPLICANT: City of Huntington Beach REQUEST: Change of zoning on various parcels to achieve ' consistency with Land Use Plan. LOCATION: Inland side of Pacific Coast Highway between Beach Boulevard and Pacific Coast Highway ACREAQE: Approximately 232 acres SUGGESTED AC. iON: Direct staff to either proceed with Zone Change No. 88-18 or prepare a new Coastal Element Amendment for the study area. 2 . 0 GENERAL INFORMATION: On June 2, 1986, the City Council adopted a Land Use Plan for the non-certified coastal zone area along Pacific Coast Highway, between Beach Boulevard and the Santa Ana River. On April 13 , 1987 the California Coastal Commission certified the Land Use Plan as ' submitted by the City. The Land Use Plan, as certified, designates approximately 7.0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production and 17.0 acres as Industrial Energy Production/Conservation. The purpose of ' this zone change is to apply appropriate zoning designations to the properties in order to achieve consistency with the Land Use designations and to complete certification of the Local Coastal ' Program for the City. The zone change was first transmitted to the Planning Commission on October 4 , 1988. At that time, however, the City Attorney requested that it be continued to a later date so that the legal ramifications of the zone change could be assessed. On December 6, 1988, the City i IV •-r 4-23C i Attorney advised staff to withdraw the zone change application. Rather than accept the withdrawal, the Planning Commission continued the item to a study session on February 7, 1989, to consider whether or not to process the zone change. ENVIRONMENTAL STATUS: Purtinanl: to Seelion 152b5 of the California Environmental Quality r Act, Zone Change No. 88-18 is classified exempt. Section 15265 states that CEQA does not apply to approvals by any local government pursuant to the preparation of a local coastal program. Rather, the burden of CEQA compliance is shifted to the California Coastal Commission. t 4 . 0 COASTAL STATUS: ' Zone Change No. 88-18 is a part of the local coastal program for the previously non-certified area of the City's Coastal Land Use Plan. After City Council approval, Zone Change No. 88-18 must be certified by the California Coastal Commission. 5 .0 ISSUES AND ANALYSIS: , The City's Coastal Element was prepared in accordance with the California Coastal Act of 1976, and submitted to the South Coast Regional Coastal Commission for a hearing in May 1981. The Coastal Element Land Use Plan was rejected by the Coastal Commission at that time partly due to failure to adequately protect wetlands which had been delineated by the Department of Fish and Game in preliminary wetlands studies conducted in 1979 and 1981. After completion of minor changes, a second rejection by the Coastal Commission, and further modifications, the Land Use Plan was finally certified in geographic part by the Coastal Commission on November 17, 1982. The Coastal Commission, however, denied certification of the geographic area along the inland side of Pacific Coast Highway ' between Beach Boulevard and the Santa Ana River, due to the preliminary wetland status assigned to it by the Department of Fish and Game. In February 1983, the Department of Fish and Game released their ' report entitled 'Determination of the Status of the Huntington Beach Wetlands. " That study reaffirmed their preliminary assessments and concluded that 136.6 acres of land between Beach Boulevard and the ' Santa Ana River were either viable or restorable wetland. Most of this wetland area was within the non-certified area of the coastal t zone. In 1986, the City of Huntington Beach prepared a study which was intended to resolve the wetland issue and result in a Land Use Plan for the non-certified area. The study analyzed three alternative I land use scenarios which were intended to address a range of intensities from almost no development to almost complete 1 Study Session - 2/7/89 -2- ( 1979d) l development of the area. During an extended public hearing process, the Department of Fish and Game, the California Coastal Conservancy and the Coastal Commission staff emphasized that virtually the only certifiable land use designation under the provisions of the Coastal Act was Conservation. The only exceptions were the Action Boat ' Brokers property at the southeast corner of Beach Boulevard and Pacific Highway, the strip of land between Cabrillo Mobile Home Park and Pacific Coast Highway, and the developed Edison Company Property. On June 2, 1986, the City Council concurred with that ' advice and adopted a Land Use Plan for the area which was largely Conservation. The Coastal Commission subsequently certified that designation. ' The Land Use Plan which was adopted and certified by the Coastal Commission is depicted in Figure 1. The purpose of this zone change is to apply appropriate zoning over the land use plan. For purposes of clarity, the subject property has been separated into 10 different areas. The following is a description of the land use designation, existing use, existing zoning and proposed zoning for each of the 10 areas. ' AREA 1 ACREAGE: - acres OWNERSHIP: CalTrans ' GENERAL PLAN HISTORY: 1975 - Destination Resort 1977 - Planning Reserve 1982 - "Whitehole" ' 1986 - Visitor-Serving Commercial ZONING HISTORY: Pre-1969 - R1 ' 1964 - RA-0 1983 - RA-O-FP2 Proposed 1989 - VSC-CZ-FP2 EXISTING USE: Action Boat Brokers This is an approximate 7 acre site which was designated by the ' Coastal Land Use Plan for Visitor Serving Commercial. it is occupied by Action Boat Brokers on the corner of Beach Boulevard and Pacific Coast Highway. . The remainder of the site is a narrow strip of land which runs along Pacific Coast Highway in front of Cabrillo ' Mobilehome Park. The Department of fish and Game identified this site as non-restorable wetlands. The Coastal Conservancy staff further recommended this site for Visitor-Serving Commercial uses such as a hotel . The existing zoning is RA-0-FP2 (Residential ' Agriculture District combined with Oil Production and Floodplain Districts) . The proposed zoning is VSC-CZ-FP2 (Visitor Serving Commercial District combined with Coastal Zone and Floodplain Districts) . -) i�/vo -?- ( 1979d) The proposed zoning will permit a hotel, restaurant or other visitor ' serving commercial uses, which would be located at the corner of Beach Boulevard and Pacific Coast Highway. The narrow strip of property along Pacific Coast Highway could be used as an access road or parking for the commercial use. The property is presently owned by Caltrans. The Coastal Conservancy staff has proposed that Caltrans sell this property back to the Mills Land and Water Company who previously owned it and who presently own other property in the area which has been designated Wetlands by the Department of Fish and Game. Development of a hotel on the site would allow Mills to generate some profit from their interest in the area. The City Council and Coastal Commission agreed with this concept when they designated the property Visitor Serving Commercial on the Land Use Plan. AREA 2 I ACREAGE: 28 acres OWNERSHIP: Mills Land and Water - 7. 15 acres CalTrans - 21 acres GENERAL PLAN ' HISTORY: 1975 - Destination Resort 1977 - Planning Reserve 1982 - "Whitehole- ' 1986 - Conservation ZONING HISTORY: Pre-1964 - R1 1964 - RA-0 1983 - RA-O-FP2 Proposed 1989 - CC-CZ-FP2 EXISTING USE: Vacant ' This is an approximately 28 acre area designated Conservation on the Land Use Plan. It has been identified by the Department of Fish and Game as Degraded Wetlands with high usage by wetlands associated birds. The site is owned in part by Caltrans and in part by Mills Land and Water Company. It is presently vacant. The existing zoning is RA-O-FP2 (Residential Agricultural District combined with ' Oil Production and Floodplain Districts) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation District combined with Coastal Zone and Floodplain Districts) . Under the Coastal Conservation designation, allowable uses are limited to those such as mineral I extraction, pedestrian trails and observation platforms, wetland restoration projects and limited public works projects. I I I Study Session - 2/7/89 -4- (1979d) I 1 • . ' AREA ' ACREAGE: 13 acres OWNERSHIP: Mills Land and Water vEMtL...PJAN 111STORY: 1975 - Light Industrial 1977 - Light Industrial ' 1982 - "Whitehole" 1986 - Conservation ZONING HISTORY: Pre-1961 - R1 ' 1961 - M1 1964 - M1-A-O 1983 - M1-A-O-FP2 Proposed 1989 - CC-CZ-FP2 ' EXISTING USE: Vacant This is an approximately 13 acre area designated Conservation on the Land Use Plan. It was identified by Fish and Game as Degraded Wetlands on a portion of the site, and former but restorable wetlands on the rr --ainder. It is owned by Mills Land and water ' Company and is presently vacant. The existing zoning is M1-A-0-FP2 (Restricted Manufacturing District combined with Oil Production and Floodplain Districts) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation District combined with Coastal Zone and Floodplain ' District) . AREA 4 ' ACREAGE: 17 acres OWNERSHIP: Southern California Edison Company ' GENERAL PLAN HISTORY: 1975 - Industrial Public Utility ' 1977 - Industrial Public Utility 1983 - "Whitehole" 1986 - Industrial Energy Production/Conservation ' ZONING HISTORY: Pre-1961 - R1 1961 - Ml-A 1962 - M2-0 1983 - M2-0-FP2 ' Proposed 1989 - M2-0-CC-CZ-FP2 EXISTING USE: Vacant ' This is an approximately 17 acre area designated Industrial Energy Production/Conservation on the Land Use Plan. It has been identified by Fish and Game as Degraded Wetland. Although the ' Coastal Act would not normally allow development of so-identified property, the Act would permit development for energy production ' Study Session - 2/7/89 -5- ( 1979d) purposes if it could be demonstrated that no other alternative site , is available. Since the property is owned by the Edison company and is adjacent to their generating plant, the special combined designation of Industrial Energy Production/Conservation was placed on it. This Land Use Designation recognizes the property's ' identification as wetlands, but would permit expansion of the powerplant if necessary. The existing zoning on the property is M2--O-FP2 (Industrial District combined with Oil Production and Floodplain district) and RA-FP2 (Residential Agricultural District combined Floodplain District) . The Proposed zoning is M2-O-CC-CZ-FP2 (Industrial District combined with Oil Production, Coastal Conservation, Coastal Zone and Floodplain Districts) . This ' zoning designation will allow expansion of the powerplant if proven necessary in the future. AREA 5 ' ACREAGE: 10 acres OWNERSHIP: Daisy Piccirelli GENERAL PLAN HI T R 1975 - Planning Reserve ' 1977 - Planning Reserve 1983 - "Whitehole" 1986 - Conservation ZONIN HISTORY: Pre 1977 - R5 1977 - LUD 1983 - LUD-FP2 ' Proposed 1989 - CC-CZ-FP2 EXISTING USE: Vacant This is an approximately 10 acre area designated Conservation on the ' Land Use Plan and is presently vacant. It is owned in part by Caltrans, Daisy Piccirelli and the Orange County Flood Control District. The Department of Fish and Game has identified this area t as Degraded Weland with high usage by wetland associated birds. The existing zoning is LUD-FP2 (Limited Use District combined with Floodplain District) . The proposed zoning is CC-CZ-FP2 (Coastal ' Conservation combined with Coastal Zone and Floodplain Districts) . AREA 6 ACREAGE: 56 acres ' OWNERSHIP: Daisy Piccirelli - 35 acres CalTrans - 21 acres ' GENERAL PLAN HISTORY: 1975 - Planning Reserve ' 1977 - Planning Reserve 1983 - "Whitehole" 1986 - Conservation 1 Study Session - 2/7/89 -6- (1979d) 1 - ZONING HISTORY: Pre 1960 - R1 1960 - R5 1 1977 - LUD 1983 - LUD-FP2 Proposed 1989 - CC-CZ-FP2 ' EXISTING USE: Vacant This is an approximately 56 acre area designated Conservation on the Land Use Plan and is presently vacant. It is owned in part by ' Caltrans, Daisy Piccirelli and the Orange County Flood Control District. The Department of Fish and Game has identified this property as Degraded Wetlands with high usage by wetland associated birds. The existing zoning is LUD-FP2 (Limited Use District ' combined with Floodplain District) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation combined with Coastal Zone and Floodplain Districts) . ' AREA 7 ACREAGE: 16 acres ' OW'NERSHIP: H. B. Wetlands Conservancy ' GENERAL PLAN HISTORY: 1975 - Planning Reserve 1977 - Planning Reserve 1983 - "Whitehole" ' 1986 - Conservation ZONING HISTORY: Pre 1960 - R1 1960 - R5 ' 1977 - LUD 1983 - LUD-FP2 Proposed 1989 - CC-FP2 EXISTING USE: Restored Wetlands This is an approximately 16 acre area designated Conservation on the ' Land Use Plan. It was recently acquired by the Coastal Conservancy and is being restored to functioning wetlands in a model restoration project. The Huntington Beach Wetlands Conservancy will manage the project. The existing zoning on the property is LUD-FP2 (Limited ' Use District combined with Floodplain District) and LUD-FP1 (Limited Use District combined with Floodway District) . The proposed zoning is CC-CZ-FP1 (Coastal Conservation District combined with Coastal ' zone and Floodway Districts) . 1 Studv Session - 2/7/89 . 1 AREA 8 t ACREAGE: 55 acres ` OWNERSHIP: Southern California Edison Company ' GENERAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Public/Quasi-Public 1983 - Public/Quasi-Public 1986 - Industrial Energy Production ' ZONING HISTORY: Pre 1961 - R1 1961 - M1-A 1962 - M2-0 ' 1983 - M2-O-FP2 Proposed 1989 - M2-0-CZ-FP2 EXISTING USE: Power Plant This is an approximately 55 acre area designated Industrial Energy Production on the Land Use Plan and is developed with the Edison ' Company power generation plant. The existing zoning is M2-O-FP2 (Industrial District combined with Oil Production and Floodplain Districts) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning designations. ' AREA 9 ACREAGE: 28 acres ' OWNERSHIP: Southern California Edison Company GENERAL PLAN ' HISTORY: 1975 - Industrial Public Utility 197.7 - Public/Quasi-Public 1983 - Public/Quasi-Public ' 1986 - Industrial Energy Production ZONING HISTORY: Pre 1961 - R1 ! 1961 - M1 ' 1962 - M2-0, 1983 - M2-0-FP2 Proposed 1989 - M2-O-CZ-FP2 ' EXISTING USE: Oil Storage Tanks This is an approximately 28 acre area designated Industrial Energy ' Production on the Land Use Plan and is developed with oil storage tanks for the Edison generating plant. The existing zoning is M2-0-FP2 (Industrial District combined with Oil Production and Floodplain Districts) and M1-A-FP2 (Restricted Manufacturing ' District combined with Floodplain District) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning designations . ' Study Session - 2/7/89 -8- (1979d) 1 AREA 10 ' ACREAGE: 2 acres OWNERSHIP: City of Huntington Beach ' CE 1�RAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Public/Quasi-Public ' 1984 - Public/Quasi-Public 1986 - Conservation ' ZONING HISTORY: Pre 1961 - R1 1961 - M1-A 1983 - MI-A-FP-2 1984 - Q(ROS)-FP2 ' Proposed 1989 - Q(ROS)-CZ-FP2 EXISTING USE: Vacant ' This is an approximately 2 acre area designated Conservation on the Land Use Plan. It is owned by the City and is presently vancant. The existing zoning is (Q)ROS-FP2 (Qualified Recreational Open Space ' District combined --ith Floodplain District) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning. This property was not identified by Fish and Game as wetlands. ' As the above description indicates, the majority of property in the non-certified area has been identified by Fish and Game as restorable wetlands and has been designated on the Land Use Plan as ' Conservation. The proposed zone change is to place the Coastal Conservation District on those properties. ' The CC (Coastal Conservation) District is a very restrictive designation which only permits wetland related uses and limited public works projects . The fact that much of this property is privately owned was discussed in detail during the public hearing ' process for adoption of the Land Use Plan. This zone change is consistent with the Land Use Plan and does not reduce the impacts on private property owners within the area. Under the adopted Land Use ' Plan and proposed zoning, the Conservation areas will probably only have market value as restorable wetlands which could be used to mitigate other projects elsewhere in the Coastal Zone. It is anticipated that Conservation designated areas will eventually be ' restored to functioning wetland status as is being done with the 16-acre parcel adjacent to the Santa Ana River month. The Non-Certified Coastal Areas Analysis prepared by the City of Huntington Beach and dated May 1986 should be consulted for further ' analysis of the land use designations and development or restoration possibilities. 1 ' _°- ( 1979d) • 1 If the Planning Commission chooses not to pursue the zone change, it will be necessary to prepare a new land use amendment and an / environmental impact analysis for submittal to the Coastal l Commission. Based on past experience, such a package would take at least six months to prepare and would be rejected by the Coastal ' Commission, as well as solidly opposed by all interested parties except the "whitehole" property owners. The primary benefit of such a Process may be that it would absolve the City of liability in a takings lawsuit by the property owners. 6 .Q RECOMMENDATION: Direct staff to either proceed with Zone Change No. 88-18 or prepare ' a new Coastal Element Amendment for the study area. f ATTACHMENTS: ' 1. Area Map 2 . Ordinance and Resolution for adoption by City Council 3 . City Council Resolution adopting Coastal Element Amendment No. 86-1 dated June 2, 1986. 9 . Coastal Commission Resolution and Findings Certifying the Land Use Plan for the area of deferred certification between Beach I Boulevard and the Santa Ana River mouth, dated April 13, 1987. 5 . Non-certified Coastal Areas Analysis prepared by the City of Huntington Beach, dated May 1986. HS: kla I I I i Study Session - 2/7/89 -10- (1979d) I 1 ' J\ A,tdl r5X 10 '!•' 0• C i� \ 0 C.SANITATION ` �\• ` 'c;, Q Cl.r` QSI, "�7 I TH UTMfyT ru Nr ocico 'S♦ _ lLG VISITOR SCRVINC. COMMEU IAL —————I!AMILTON EXTENSION EXHIBIT A CON:>UNAT I Otl m NONCERTIFIED INDt1SRTIAL EiIERGY PRODUCTION COASTAL AREA ~ M1TNGtON IAC" GRAW INL. fCZGY ( Cu•/ CONSERVATIONONE CNAN 6F—: QLQ 16 PUNW4 OEMittMfNT r Beginning at a point on the easterly right-of-way line of ' Beach Boulevard and the northwest corner of Parcel A1787 as shown on Division of Highways Appraisal Map No. F-1712-2; thence southeasterly 309.12 feet along the north line of said parcel A1787, said north line also being the northerly line of the boat storage facility; thence northeasterly 41. 61 feet; thence southeasterly 200.00 feet; thence southwesterly 31.00 feet to the chainlink fence for the northerly limits of said boat storage facility; thence ' southeasterly 400.00 feet along said northerly limits to the fence t corner for the easterly limits of said boat storage facility; thence ' southeasterly 135.00 feet to the fence for the southwest corner of the Cabrillo Mobile Home Park; thence southeasterly 723.50 feet along southerly fence for said Mobile Home Park; thence southwest 40 . 00 feet to the northerly right-of-way line Pacific Coast Highway. Thence northwesterly along said right-of-way line to the ' easterly right-of-way line of Beach Boulevard; thence northerly along easterly right-of-way line of Beach Boulevard to the point of beginning. ' C And, that portion of land bounded on the east by Newland ' Street, bounded on the south by- Pacific Coast Highway, bounded on the west by a line parallel to and distant 401.00 feet from the centerline of Newland Street and bounded on the north by the block ' wall for the southerly limits of the vehicular storage facility. SECTION 2. The following described real property, ' designated B,' consisting of approximately 28 acres, generally located on the east side of Beach Boulevard beginning approximately r 200 feet north of the northeast corner of the intersection of Pacific Coast Highway and Beach Boulevard and extending north approximately 500 feet, is hereby changed from RA-O-FP2 (Residential c Agricultural within an Oil District within a Flood Plain) to ' CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . r r Ordinance No. -2- (0925d) r 1 . . ' In the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that ' portion of fractional Section 24 all in Township 6 South, Range 11 west, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book ' 51, Page 14 of Miscellaneous Maps in the office of the Recorder of said county, described as follows: Beginning at a point on the easterly right-of-way line of Beach Boulevard and the northwest corner of Parcel A1787 as shown on Division of Highways Appraisal Map No. F-1712-2; thence southeasterly 309.12 feet along the north line of said Parcel A1787, ' said north line also being the northerly line of the boat storage facility; thence northeasterly 41.61 feet; thence southeasterly ' 200 . 00 feet; thence southwesterly 31.00 feet to the chainlink fence for the northerly limits of said boat storage facility; thence southeasterly 400. ' 0 feet along said northerly limits to the fence ' corner for the easterly limits of said boat storage facility; thence southeasterly 135.00 feet to the fence for the southwest corner of the Cabrillo Mobile Home Park; thence northeasterly 246.50 feet along said fence to the blockwall for the westerly limits of a Mobile Home Park; thence northwesterly 325.50 feet along said ' blockwall to the southerly right-of-way line of the Orange County Flood Control District right-of-way line; thence easterly 300.00 feet along said right-of-way line; thence northerly to the southwesterly right.-of-way of line of the Orange County Flood ' District D01 Channel; thence northwesterly along said right-of-way line to the southeast corner of Parcel 1 of Parcel Map No. 84-590 as shown on a map recorded in Book 202, Page 48 thru 50, of Parcel ' Maps, records of Orange County, California; thence westerly 438.28 feet along the southerly line of said Parcel 1 to the easterly right-of-way line of Beach Boulevard; thence southerly along said right-of-way line to the point of beginning . SECTION 3. The following described real property, designated C, consisting of approximately 13 acres, generally located to the north and to the west of the Orange County Flood Control channel D1-2 is hereby changed from M1-A-O-FP2 (Restricted ' Manufacturing 'within an Oil District within the Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . That portion of the southwest 1/4 of Section 13, Township ' 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, as shown on a map ' recorded in book 51, page 14 of Miscellaneous Maps, in the Office of the County Recorder of said County, described as follows: A 16.37± acre parcel bounded on the north side by the projection of the center line of Hamilton Avenue, on the east side ' by the west right-of-way line of Newland Street, on the south and west sides by the northerly and easterly right-of-way lines of the Orange County Flood Control Channel D01. 'SECTION 4 . The following described real property, designated D, consisting of approximately 17 acres, generally located on the inland side of Pacific Coast Highway to the east of the Edison Company Power Plan and extending east along Pacific Coast Highway approximately 1, 000 feet and north to the Orange County Flood Control Channel D1-1, is hereby changed from M2-0-FP2 ' (Industrial District within an Oil District within a Flood Plain) and RA-FP2 (Residential Agricultural within a Flood Plain) to ' M2-O-CC-CZ-FP2 (Industrial District within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood ' Plain) . 1 1 Ordinance No . -4- (0925d) 1 . ' In the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that rportion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book 51, Page 14 of Miscellaneous Maps in the office of the Recorder of said county, described as follows: Beginning at a point on the northerly right-of-way line of Pacific Coast Highway distant 974 .27 feet southeasterly from the centerline of Newland Street, said point also being the most southern point of Parcel 1 as shown on a record of survey map recorded in Book 43, Page 2, records of said County; thence N610571100E 1006.10 feet along the southeasterly line of said Parcel 1 ; thence N81003 '39"E 343 .11 feet to the southwesterly right-of-way line of the Orange County Flood Control District D01 Channel; thence southeasterly 350. 01 feet along said right-of-way line to a point, ' said point also being the easterly line of a record of survey as shown on a map recorded in Book 74 , Page 11, records of said- County; ' thence S34035'30"W 1009 .83 feet along said easterly line to the northerly right-of-way line of Pacific Coast Highway; thence N55024 '30"W 1040. 00 feet along said right-of-way line to the point ' of beginning . SECTION 5. The following described real property, designated E, consisting of approximately 10 acres, generally located on the inland side of Pacific Coast Highway at the northwest corner of Pacific Coast Highway and Magnolia Street and extending approximately 700 feet west along Pacific Coast Highway and north to the Orange County Flood Control District Channel D1-1, is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . w That portion of the northeast 1/4 of Section 24, Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, described as follows: A 10.41± acre parcel bounded on the north side by the Orange County Flood Control DO1 channel, on the east side by the westerly right-of-way line of Magnolia Street, on the south by the northerly right-of-way line of Pacific Coast Highway, on the west by ' a 1009.83 ' line north 34035'30" east which intersects the centerline of Pacific Coast Highway 2,014 .27 feet east of the centerline of Newland Street. ' SECTION 6. The following described real property, designated F, consisting of approximately 56 acres, generally located on the inland side of Pacific Coast Highway between Magnolia Street and Brookhurst Street and north to the Orange County Flood i Control District Channels D1-1 and D2-2, is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to CC-CZ-FP2 ' (Coastal Conservation within the Coastal Zone within a Flood Plain) . That portion of the west 1/2 of Section 19, Township 6 ' south, Range 10 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California described as follows: ' A 56.28± acre parcel bounded on the north by the southerly ' right-of-way line of the Orange County DO1 and D02 Flood Control Channel, on the east by the westerly right-of-way line of Brookhurst Street, on the south by the northerly right-of-way line of Pacific ' Coast Highway and on the west by the easterly right-of-way line of Magnolia Street. ' SECTION 7. The following described real property, ' designated G, consisting of approximately 16 acres, generally located on the inland side of Pacific Coast Highway between Ordinance No. -6- (0925d) ' Brookhurst Street and the Santa Ana River extending north to the Orange County Flood Control District Channel D2-1, is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) and LUD-FP1 (Limited Use District within a Flood Plain) to CC-CZ-FP1 (Coastal Conservation within the Coastal Zone within a Flood Plain) . That portion of Section 19, Township 6 South, Range 10 West, in the Rancho Las Bolsas, in -the City of Huntington Beach, County of Orange, as shown on map recorded in Book 51, page 14 of Miscellaneous Maps, in the office of the County Recorder of said ' County, acquired by the State of California by Parcel 3 of Final Order of Condemnation (State Parcel A1788) , filed in Superior Court Case No. 123366, a certified copy of said final order being recorded April 29, 1965 in Book 7502, page 533 of Official Records, in said ' office, described as follows: Beginning at a point in the easterly line of said acquired ' land, distant along said easterly line N16037'29"E, 21.32 feet from the most •southerly corner of said acquired land; thence N61037'48"W, 134 .70 feet to the southwesterly line of said acquired land; thence along last said line N53005'28"W, 250.00 feet; thence N49'39 '27"W, 250 .45 feet to a line parallel with and distant northeasterly 15.00 ' feet, measured at right angles, from said southwesterly line; thence along said parallel line N53.05'28"W, 800.00' feet; thence N50013 '43"W, 200.25 feet to a line parallel with and distant northeasterly 25.00 feet, measured at right angles from said southwesterly line; thence along last said parallel line N53005'28"W, 459 .00 feet to that course described as S8604 ' 59"E, 23 .94 feet in Parcel 3 of Director's Deed DE 011788-01-02, recorded December 13, 1978 in Book 12960, page 1891 of said Official Records; thence along last said course S8"04 '59"E, 7.07 feet to the southeasterly terminus of that course described as N53005'28"W, 23 .70 feet in last mentioned Parcel 3; thence along last said course N53-05' 28-W, 23 . 70 feet to the southerly terminus of that tangent 1 Ordinance No . -7- (0925d) curve described as having a radius of 25.00 feet in last said Parcel ' 3 ; thence northerly along said curve to the southeasterly line of Brookhurst Street (formerly Wright Street) , 80.00 feet wide, as described in deed to the County of Orange, recorded in Book 2535, , page 578 of said Official Records; thence along said southeasterly line N38.35'50"E, 395.83 feet. to the southwesterly line of the parcel of land conveyed to A.C. Thorpe by deed recorded in Book 302, page 69 of deeds, in said office; thence, generally southeasterly ' along last said southwesterly line to said easterly line; thence southerly along said easterly line to the point of beginning. SUBJECT TO THE EXCEPTION THEREFROM all oil oil rights, ' minerals, mineral rights, natural gas, natural gas rights, and other hydrocarbons by whatsoever name known that may be within or under the herein conveyed parcel of land, and the rights thereto, together with certain other conditions, as excepted in first mentioned Parcel ' 3 . SECTION 8. The following described real property, ( ' designated H and commonly known as the Edison Company, located on the inland side of Pacific Coast -Highway at the northeast corner of ' the intersection of Newland Street and Pacific Coast Highway and extending north to the Orange County Flood Control District Dl-1 channel, is hereby changed from M2-O-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-0-CZ-FP2 (Industrial District within an Oil District within the Coastal Zone within a t Flood Plain) . 1 In the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book 51, Page 14 of Miscellaneous Maps in the Office of the Recorder of ' said County, described as follows : Ordinance No. -8- (0925d) 1 ' Beginning at a point on the northerly right of way line of - 9 9 P Y 9 Y ' Pacific Coast Highway distant- 974.27 feet southeasterly from the centerline of Newland Street, said point also being the most southern point of Parcel 1 as shown on a record of survey map ' recorded in Book 43, Page 2, records of Said. County; thence N61057'10"E 1006.10 feet along the southeasterly line of said ' Parcel 1; thence N810031390E 343.91 feet to the southwesterly right of way line of the Orange County Flood Control District D01 ' Channel; thence northwesterly and westerly along said right of way line to the easterly right of way line of Newland Street; thence southerly and southwesterly along said right of way line to the ' northerly right of way line of Pacific Coast Highway; thence southeasterly along said right of way to the point of beginning. ' SECTION 9 . The following described real property designated I , cons sting of approximately 28 ± acres, located ' northwest of the intersection of Magnolia Street and the Orange County Flood Control District D1-1 and commonly known as the Edison ' Oil Tank Farm, is hereby changed from M2-0-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-0-CZ-FP2 (Industrial District within an Oil District within the Coastal Zone ' within a Flood Plain) and from M1-A-FP2 (Restricted Manufacturing within a Flood Plain) to M1-A-CZ-FP2 (Restricted Manufacturing ' within the Coastal Zone within a Flood Plain) . ' That portion of the southeast 1/4 of Section 13, Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, as shown on a map ' recorded in Book 51, Page 14 of Miscellaneous Maps, in the Office of the County Recorder of said County, described as follows: ' A 28 . 17 ± acre parcel bounded on the east and south-east by the westerly and northwesterly right-of-way line of Magnolia ' Street , on the southwest by the northeasterly right-of-way line of 1 ' (n°'S^1 the Orange County Flood Control Channel DO1, on the north by the , north line of the SE 1/4 of the SE 1/4 of Section 13, Township 6 south, Range 11 west, on the south by a line accepted as the south ' line of Section 13, Township 6 south, Range 11 west. SECTION 10. The following described real property designated J, consisting of approximately 2 ± acres, located at the northeast intersection of Magnolia Street and the Orange County ' Flood Control District Dl-1 Channel, is hereby changed from (Q)ROS-FP2 (Recreational Open Space with Qualified Classifications within a Flood Plain) to ROS-Q-CZ-FP2 (Recreational Open Space with ' Qualified Classifications within the Coastal Zone within a Flood Plain) . That portion of northeast 1/4 of Section 24 , Township 6 ' south Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, described as follows : A 2 ± acre triangular parcel bounded on the east by the ' westerly boundary of Tract 3903, on the northwest by the ' southeasterly right-of-way line of Magnolia Street and on the southwest by the north-easterly right-of-way line of the Orange County Flood Control Channel DO-1. ' SECTION 11. The Community Development Director is hereby ' directed to amend Section 9061, District Maps 14 , 22, and 29 (Section District Maps 13-6-11, 19-6-10, 24-6-11) to reflect Zone Change No. 88-18 described in Sections 1 through 10 hereof. Copies ' of said district maps, as amended hereby, are available for inspection in the office of the City Clerk. ' l SECTION 12. This ordinance shall take effect thirty days ' after its adoption. Ordinance No. -10- (0925d) 1 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 1988. ' Mayor ATTEST: APPROVED AS TO FORM: 1 ' City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND-APPROVED: City Administratc,_ Director of Community Development 1 1 INNING E(: TIONAL DISTRICT MAP 13-6-11 Yt/rtt wutw 1,HN "••�rw>aw!�.•w CITY OF _ -�-•_-.`.= -..~• 1 tll. t.Yt1• MMw•wCt tr�M�•11. 1 �•w •w[wON«dam ���rCi®� �ir p•. t�w.ti ..1. ©Yw NIw.•N.y pwf)r :-I1INTINGTON BEACH „. ..•.t, •s. n• •.w.�r••r1310 ®•wr••r .w•sr •-r••J tfr .» r.•.«w/wt• .Q Iww .wr... w••••• •M••! t•! .N ••!•«Y J•NM ED�,.•ay w.wR.i. p••t• •..-tl 1•t•.l 1.t•t.•iy NM .•• N-1•.f 1N M.r •-•••r••••O•••• •'•'ww•��r p•af• 111ANCE COUNTY, CALIFORNIA •.t.•• ,,, .. 1•p•r•/•1.'r.1Y � �• �i.•+www v t �1•.• w Nl1 • s•t1 r.+.rr rw.�p••w• f.L•• •m w•. w•w r• "Wert m w•w•••I w.•w wwfvw• •.•.••••• •Ol• Y1••• 1•Il tlf• tr:1 w•••aw••w•.�.••..w r•..• ••.►•N wl H•! • 1•p frJ Mt! (ram ----•r•••w••••wMwr.•••r- •••••s Y U J1• •.1••! •!f 11f• f•.r• • f_ o• tr•• w••V•. / VAI T l A N T A�/l/��������1��/��//�����/���������1���/A !'-/�/���/�����������/�����/�� ;1�/. :a....w•_� �Y/`'' R3 .� q] _ q �... 1lS l R3 r �• R] O R 3 � /•� 113 � •'R at• RI ' Ill• It �• q 1 ql C4 =� -so �� *wl A 2 RI III RI 11113 R2 4 `oilI RI RI , '111 R] as • I RI I fe--0 1 1•I��� RI ql I� •fJ1�43 .�.' .... r 1 R4-28 f 1 R] 2011 ,_ RI ;tn RI 03- R3 RI I RI I ' CF—R ' kRI RI 1 ✓ M I-A-O - O • 8 - - • ' R•� RI RA �vl I� I N m�j - MI-A'0 C MI-A-0-CZ O - -- -- - -- LUD-0-CZ c,.,, � 1 t•rn,l-err _"'.^'. , ` � M2-0 MH-CZ ' 1 as 1 M -0 ' PAC.IF IC OC C A N A2 D Iw ' &INNING ZONING DM 29 ' SECTIONAL DISTRICT MAP 24-6-II _. nOT[� CITY OF � "� .......... HUNTINGTON BEACH `~` M�' "' f•fry o(f � few �••w�• ��•�••i•�s••� Q��. M TT ffY �w���wAv•��" ►1•M M-• f•M ����.wwn w•�• ORANGE. COUNTY. CALIFORNIA ®1�►w r•r f t �•• • RI-CZ-FP2 tM2- 4Q� •' LUD-FP2 LUD-FP2 r 'c 1 1 1 NNING ZONING OM 2 2 ECTIONAI DISTRICT MAP 19-6-10 ------- CITY OF �•_ �� �� � C", cow MM•K/ N 7M IL UMD �' taww ws•�� ••�•• • t•'^r �� ram• :r s� _ ' IUNTINGTON BEACH •�.i• M� w .a••b art•a•••w•••wr•wri` •a w 'a• w �".�••�l•r v.. I RANGE COUNTY CALIFORNIA I� V-:0 l V IN RI RI RI V M =t ��.�o ••O ti• •, Ri �ik V • RI � ;y RI IRI•,t � ql• Val( ,.�/ `o u a ` I Al Rl Rl Cap' (�Q \-EI Qom• l ~// _ \ a �f///////lam/i S��+ co,J l �A� •�.�.�� / - I ,,��C '�//////�///, AGO� ! � _ J• I , //�/\' In �' 1 +♦ 4•- I r •�, 1 I • RESOLUTION NO. 5670-A ( A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH APPROVING COASTAL ELEMENT AMENDMENT NO. 86-1 TO THE GENERAL PLAN I WHEREAS, the City Council of the City of Huntington Beach desires to update and refine the General Plan in keeping with changing community needs and objectives; and A public hearing on adoption of Coastal Element Amendment No. 86-1 to the General Plan was held by the Planning Commission on April 22, 1986, and approved for recommendation to the City ' Council; and ' Thereafter the City Council, after giving notice as prescribed by law . held at least one public hearing to consider ' Coastal Element Amendment No. 86-1; and At said hearing before the City Council all persons desiring ' to be heard on said amendment were heard, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Huntington Beach, that Coastal Element Amendment No. 86-1 consisting of the following changes is hereby adopted: Designate the 231. 5 acre non-certified white hole area for 7 acres of Visitor Serving Commercial, 17 acres of Industrial Energy Production/Conservation, 83 .0 acres of Industrial Energy Production and 124.5 acres of Conservation as indicated in Exhibit A, attached hereto and incorporated by reference herein. 1 Coastal Element Amendment No. 86-1 will be presented to the California Coastal Commission as the Land Use Plan for the ' uncertified white hole area. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 2nd day of June 1986. Mayor ' ATTEST: APPROVED AS TO FORM: ' • City =effk TZ G City Attorney REVIEWED AND APPROVED: INITIATED- AND APPROVED , C�GliuG �__6ity A ministrat Directory o Deve opment Services ' 1 1 t I �, / '•� ' i�. •��;,mil• � , •\ C� /�`� / �o /•�•,���.•'';i`'���,�•� •'�. "�../_ is '� Q vil 46 O.C.;AJOITArION i{ •�i�r, ,., .. `► �.:':' tip' i:' + f%, ✓:. .0C-0•CA yr'ai��s� '. ,��'• r'S f.:},'. '�• �, / �i'I" J ' Dfr \ �' ,l' � r{ !'.v:� i I Hoyt I /•% ! J.;„'i' �Y::�:j.y.si ;�,j�.l•'� \ VISITOR SERVING COMPIEPCIAL -----NAILTc1V EXTENSION EXHIBIT A CONSERVATION m NONCERT1FIED INDUSRTIAL ENERGY PRODUCTION COASTAL AREAS ►-Hrr.oroN WICH carI IND. E;I"RGY PROD./ CONSERVATION oEnunMea ' STATE CK CALKORNIA—THE RESOURCES AGENCY GEd1GE OEUKM�EIIAN, Gewww. CALIFORNIA COASTAL COMMISSION (Findings approved by the - ' COAST AREA California Coastal Commission �• �` 2'. '4ST ROADWAY. SURE 300 on April' 23, 19 8 7)LONG NACN. CA 90l01 'f 11 . (71]) S90 5071 , , I L �1 I RECOMMENDED FINDINGS ' TO: Commissioners and Interested Persons [FROM: Tom Crandall, District Director Wayne Woodroof, Assistant District Director tChristopher Kroll, Lead Analyst SUBJECT: CITY OF HUNTINGTON BEACH LOCAL COASTAL PROGRAM ' RESUBMITTAI. OF THE LAND USE PLAN FOR THE AREA OF DEFERRED CERTIFICATION TWEEN BEACH BOULEVARD AND THE SANTA ANA RIVER , r'or Public Hearing and Commission action at the meeting of April 21-24 1987) DATE: April 13, 1987 STAFF NOTE The resolution recommended for action is the resolution to certify ' the and Use Plan (Page 6) as resubmitted. The action taken on the resolution on October 8, 1986 was as follows: LAND USE PLAN Commissioners Voting: Contreras Yes McInnis Yes Franco Yes McMurray Yes ' Glickfeld Yes Warren Yes Kinq Yes Wright Yes MacElvaine Yes Wornum Yes Malcolm No SYNOPSIS Issues ' The certified Coastal Element ( LUP) policies (Exhibit 5) of the City's certified in geographic part Local Coastal Program have been resubmitted as part of the Land Use Plan for this geographic area . The Land Use Plan (Exhibit 3) includes new land use designations which address the issues which formed the basis of the Commission' s findings for denial of the Land Use Plan for this area in 1982. Background t The Commission at its meeting of November 17, 1982 certified the Huntington Beach Land Use Plan in geographic part and denied certification in part for the following geographic areas: 1 . The area of the Metropolitan Water District (MWD) parcel NW of the Bolsa Chica 2. The area from Beach Boulevard to the Santa Ana River Mouth ' By a resolution dated February 6, 1984 the City accepted the Commission' s certification in geographic part and the Executive Director reported the adequacy of the City's action to the Commission to effectively certify the Land Use Plan in geographic part on March 15, 1984 . The City' s Implementation was submitted to the Commission on ' December 14, 1963 and deemed filed on March 2, 1984 . On April 12, 1984 the Commission denied the Implementation as submitted and certified it in geographic part with suggested modifications. The Executive Director determined and the Commission concurred in the adequacy of the City's acceptance of the suggested modifications and effectively certified the Implementation on March 13, 1985. Since 1985, the City has held several public hearings and discussions with Commission staff and other affected agencies regarding the two areas of deferred certification. On June 2, 1986, the City adopted a Land Use Plan for the area of deferred certification between Beach Boulevard and the Santa Ana River mouth. The Land Use Plan resubmittal was received by the Commission on July 31 , 1986 and deemed filed on August 12, 1986. On October 8, 1986, the Commission certified the Land Use Plan as resubmitted. TABLE OF CONTENTS ' EXECUTIVE SUMMARY 4 LAND USE PLAN I . STAFF RECOMMENDATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 ' II. FINDINGS FOR CERTIFICATION OF LUP. . . . . . . . . . . . . . . . . . . . . . . . . 6 III . FINDING: cOR SUGGESTED MODIFICATIONS. . . . . . . . . . . . . . . . . . . . . 23 V. ENERGY FINDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 VI . PUBLIC ACCESS FINDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 VII . OTHER COASTAL ELEMENT POLICIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 30 VIII . CEQA FINDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1 1 Page 4 EXECUTIVE SUMMARY Area Description The City of Huntington Beach is located in northern Orange County ' between the City of Seal Beach and the Santa Ana River with a coastal zone of about five square miles including nine miles of public beach. At the northern end of the City is the Huntington ' Harbour waterfront marina community and commercial centers. The shoreline contains major state and city beaches with support facilities and a Municipal Pier which provides public recreation opportunities. The Downtown and Townlot area are a mix of recreation and commercial uses and residential development. There is extensive oil and energy-related operations and environmentally sensitive coastal wetlands and other habitat in the City's coastal ' zone. Land Use Plan Summary ' The Land Use Plan as resubmitted is comprised of the following land use designations: 1 . Visitor-Serving Commercial : The City has designated a seven-acre strip along Pacific Coast ' Highway between Beach Boulevard and Newland Street as "visitor-serving commercial' . This area has been determined by the Department of Fish and Game in its 1983 Determination of the Status of the Huntington Beach Wetlands to be former wetlands which is not ' restorable. The visitor-serving designation is also appropriate as the site is located at the terminus of the major access route (Beach Boulevard) from inland areas to the beach. This designation c is part of the Coastal Element ( the certified in geographic part ' LUP) which has been included as part of this resubmittal . The principal permitted uses are hotels, motels, restaurants, theaters, museums, specialty and beach-related retail , and service uses. Office and residential uses are conditional uses in this district and would be allowed only by special permit . The general height limit for all categories of development is three stories. 2 . Conservation: ' The City has designated 124 . 5 acres between Beach Boulevard and the Santa Ana River as 'Conservation' . This use is part of the adopted Coastal Element . The intent of the designation is to protect valuable resource areas . The designation allows certain low 1 ' Page 5 ' intensity resource protective activities including picnic and observation areas, nature trails and peripheral bike paths, informational signs or displays, and peripheral parking areas. Public access is encouraged and should be provided where possible. 3. Industrial Energy Production The City has redesignated 84.5 acres between Newland Street and Magnolia Street as 'Industrial Energy Production'. This designation includes the existing developed Edison Company power plant site and the adjacent storage tank area. The designation is intended to accommodate non-oil extraction related coastal dependent energy production facilities. Principal permitted uses include power plants, storage tanks, transmission lines, storage and maintenance yards, and ancillary buildings. 4 . Industrial Energy Production/Conservation ' The 17-acre vacant parcel adjacent to the Edison power plant has been redesignated as 'Industrial Energy Production/Conservation' . In this case, a ', nservation' overlay has been applied to the ' underlying land use designation of ' Industrial Energy Production' . This designation is intended to allow the existing wetland area to he protected and restored while not precluding the option of power I plant expansion onto this site if no feasible less environmentally damaging alternative, such as an inland location, exists and if appropriate mitigation, including restoration of degraded wetlands in the area, is provided. i i i 1 1 . 1 1 Page 6 i LAND USE PLAN ' RECOMMENDATION AND FINDINGS FOR CERTIFICATION I . RECOMMENDATION Following a public hearing, the Commission shall adopt the ' following resolution and related findings and declarations for the City of Huntington Beach Land Use Plan for the area of deferred certification between Beach Boulevard and the Santa Ana River mouth ' as resubmitted. MOTION I I move that the Commission certif in geographic part the Land Use Plan for the area of def—erred certification between Beach Boulevard and the Santa Ana River mouth as resubmitted by the City of Huntington Beach. ' Resolution to Certify The Commission hereby certifies the resubmitted Land Use Plan for ' the area of deferred certification between Beach Boulevard and the Santa Ana River mouth of the City of Huntington Beach Local Coastal Program and finds for the reasons discussed below that the resubmitted Land Use Plan meets the requirements of and is in conformity with the- policies of Chapter 3 (commencing with Section 30200) of the Coastal Act to the extent necessary to achieve the ' basic stated goals specified in Section 30001. 5 of the Coastal Act; that the resubmitted Land Use Plan contains a specific access component as required by Section 30500(a) of the Coastal Act ; is consistent with applicable decisions of the Commission which shall ' guide the local government in their future actions under Section 30625(c) of the Coastal Act; and certification of the resubmitted Land Use Plan meets the requirements of Section 21080. 5(d) (2) ( i ) of the California Environmental Quality Act, as there are no further ' feasible alternatives or mitigation measures available which would substantially lessen any significant adverse impact which the Land Use Plan may have on the environment. II . FINDINGS FOR CERTIFICATION OF THE LAND USE PLAN ' A. Environmentally Sensitive Habitat Areas ' 1 EMERALD ENGINEERING JOS C"y o/- /Y S. zovlv6 Aocc-S 18600 Main Street Suite 160 SKEET Wo. 1 or 2 ' HUM WGTON BEACH, CALIFORNIA 92648 wcuuTED Sly / B/I KE.0 DATE AU6.2S�aa (714) 048 4551 CHECKED My DATE icALf lV rS- ' AAXCt c 1 4\ A.T.S. V � /7ARCt 9 z D t iaC 44 • bJ � � 'If ss id6f o ST i Joe Cl T Y OJ c N, . EMERALD ENGINEERING 18600 Main Street Suite 160 SHEET NO! Z pi HuNMGTON BEACH. CAUFORNIA 92648 1 Da✓ 3A*E� (714)"8-4581 CALCULATED BY OATE C„ECKEO Ev DATE _ SCALEN. T•S. - i P�R�EL /O 4. 3 ' P•4C/F/C "0,4 57 w Y. i 1 1 ' Page 7 Section 30240(a) of the Coastal Act states that: Section 30240 i (a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on such resources shall be allowed ' within such areas. (b) Development in areas adjacent to environmentally ' sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade such areas, and shall be compatible with the continuance of such habitat areas. Section 30233 provides in part: Section 30233 ' (a ) The diking, filling, or dredging of open coastal waters, wetlan� s, estuaries, and lakes shall be permitted in ' accordance with other applicable provisions of this division, where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects, and shall be limited to the following: ( 1 ) New or expanded port , energy, and ' coastal-dependent industrial facilities, including commercial fishing facilities. ( 2) Maintaining existing, or restoring previously dredged, depths in existing navigational channels, turning basins, vessel berthing and mooring areas, and boat launching ramps. ( 3) In wetland areas only, entrance channels for new or expanded boating facilities; and in a degraded wetland, identified by the Department of Fish and Game ' pursuant to subdivision (b) of Section 30411 , for boating facilities if , in conjunction with such boating facilities, a substantial portion of the degraded wetland is restored and maintained as a biologically productive ' wetland. The size of the wetland area used for boating facilities, including berthing space, turning basins, necessary navigation channels, and any necessary support service facilities, shall not exceed 25 percent of the degraded wetland. ' ( 4 ) In open coastal waters, other than wetlands, 4 ^ 11,Ain^ streams, estuaries, and lakes, new or expanded boating facilities and the placement of structural• pilings for public recreational piers that provide public access . J 1 Page B ( 5) Incidental public service purposes, including 1 but not limited to, burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines. (6) Mineral extraction, including sand for restoring beaches, except in environmentally sensitive areas. (7) Restoration purposes. c (8) Nature study, aquaculture, or similar I resource dependent activities. . . (c) In addition to the other provisions of this section, diking, filling, or dredging in existing estuaries and f wetlands shall maintain or enhance the functional capacity of the wetland or estuary. Any alteration of coastal wetlands identified by the Department of Fish and Game, including, but not limited to, the 19 coastal wetlands identified in its ' report entitled, 'Acquisition Priorities for the Coastal wetlands of California', shall be limited to very minor incidental public facilities, restorative measures, nature ' studv. . . if otherwise in accordance with this division. . . Section 30230 states that : Section 30230 Marine resources shall be maintained, enhanced, and where ' feasible, restored. Special protection shall be given to areas and species- of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters ' and that will maintain healthy populations of all species of marine organisms adequate for Iona-term commercial, recreational, scientific, and educational purposes. Section 30231 states as follows: Section 30231 The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the ' protection of human health shall be maintained and, where feasible, restored through, among other means, minimizing adverse effects of waste water discharges and entrainment , controlling runoff, preventing depletion of ground water ' supplies and substantial interference with surface water flow, - - 1 1 Page 9 encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats, and minimizing alteration of natural streams. ' Section 30411 (b) of the Coastal Act provides that: ' Section 30411 (b) The Department of Fish and Game, in consultation with the commission and the Department of Boating and ' Waterways, may study degraded wetlands and identify those which can most feasibly be restored in conjunction with development of a boating facility as provided in subdivision (a) Section 30233. Any such study shall ' include consideration of all the following: ( 1) Whether the wetland is so severely degraded and its ' natural processes so substantially impaired that it is not capable of recovering and maintaining a high level of biologica" productivity without major restoration activities. ' ( 2 ) Whether a substantial portion of the degraded wetland, but in no event less that 75 percent, can be restored and maintained as a highly productive wetland in conjunction with a boating facilities project. ( 3) Whether restoration of the wetland's natural values, ' including its biological productivity and wildlife habitat features, can most feasibly be achieved and maintained in conjunction with a boating facility or whether there are other feasible ways to achieve such values. 1 . Wetlands ' The Commission generally considers wetlands, estuaries, streams, riparian habitats, lakes and portions of open coastal waters to be environmentally sensitive habitat areas because of the especially valuable role of these habitat areas in maintaining the natural t ecological functioning of many coastal habitat areas and because these areas are easily degraded by human developments. Wetlands are highly diverse and productive . The combination of shallow and ' deep water, and the variety of vegetation and substrates produce far greater possibilities for wildlife feeding, nesting and resting than is found in less diverse areas. Individual wetlands may be inhabited by hundreds of species of birds, mammals, fish and ' smaller organisms. Migratory animals feed and rest in California's coastal wetlands in ' large enough numbers to make the wetlands invaluable habitat areas. Most waterfowl and shorebirds found in North America, such as duCKs, geese, sandpipers, and dunlines, are migratory. During Page 10 the fall and spring migrations, millions of these birds move along well-defined routes called flyways. The California coast , part of ' ttie Pacific Flyway, was assigned third highest priority (out of a total of 33 areas nationally) for wintering habitat preservation by the U.S. Fish and Wildlife Service. Since wetlands are so valuable from both an economic and biologic standpoint, the Coastal Act, and many other Federal and state statutes and regulations, mandate governmental regulation of these ' areas. The Coastal Act requires that the biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes be maintained and, where feasible, restored. Section 30233 of the Coastal Act requires in part that the diking, dredging ' or filling of open coastal waters, wetlands, estuaries shall be permitted where there is no feasible less environmentally damaging alternative and where feasible mitigation measures have been provided and shall be limited to the uses enumerated in subsections (a) ( 1-8) . Significant wetland resources have been identified within the City's coastal zone as determined by the Commission in its previous actions on the City's certified in geographic part ' LCP. In 1982, the Commission certified the City's LUP excluding those areas identified as wetlands. The two non-certified wetlands areas are the Metropolitan Water District (MWD) parcel adjacent to ' t:h(- Bolsa Chica and the area from Beach Boulevard to the Santa Ana River (Exhibit 2) . The Land Use Plan was denied for these areas based on land use designations which were inconsistent with Section 30233 and the energy policies of the Coastal Act. ' Historically, coastal estuaries and wetlands have been destroyed or disturbed by activities such as dredging for ports and marinas, diking from tidal action, filling to provide new land for ' development, and used as sumps for domestic sewage and industrial waste and deprived of rejuvenating freshwater inflow by water diversions. Of the original 197,000 acres of marshes, mudflats , ' bays, lagoons, sloughs and estuaries in California (excluding San Francisco Bay) , the natural productivity and open space values of 52% have been totally destroyed by dredging and filling. Of California' s remaining estuaries and coastal wetlands, 62 percent ' have been subjected to severe damage and 19 percent have received moderate damage (California Coastal Plan) . Thus, less than 10% of California' s origin= coastal estuaries and wetlands remain ' relatively undisturbed. It is for reasons such as these that the Coastal Act contains mandatory provisions for wetland protection and restoration ' including those wetlands which have been severely altered by human activities and therefore degraded. In fact , wetlands are the coastal resources that have been granted the greatest amount of protection in the Coastal Act . For example, there are several ' specific Coastal Act policies which require the maintenance of biological productivity and the quality of wetlands (Section 31?221) • restrict diking, filling and dredging of wetlands (Section 1 Page 11 ' 30233) ; and provide for the restoration of wetlands (Section 30231 , 30411 and 30607. 1 ) . Thus, wetlands protection and restoration is one of the Coastal Act's major priorities. 1 Of California's remaining coastal wetlands, southern California wetlands have been the most severely depleted. However, southern California 's coastal wetlands still support hundreds of thousands of birds including dozens of species which migrate along the Pacific Flyway. Hence, according to Zedler (1982a) , these areas take on international importance as feeding and resting grounds for ' species found from Alaska to Antarctica. Herons, egrets, gulls, terns, shorebirds, ducks, geese, coots, wading birds and rails can be seen in southern California coastal wetlands throughout most of ' the year. However , several of these bird species which use southern coastal wetlands are now endangered due, in large part, to the massive losses of wetland habitat. Approximately 75 percent of the estuaries and coastal wetlands in southern California have been destroyed or severely altered by man since 1900. Two-thirds of the twenty eight sizai .e, estuaries existing in southern California at ' the turn of the century have been dredged or filled (California Coastal Plan) . These losses have driven several species o wildlife nearly to extinction. ' Endangered species which use the wetlands include five endangered birds. The California least tern (Sterna albifrons browni) , the brown pelican (Pelecanus occidentalis ca i ornicus) , the peregrine ' falcon (Falco peregrinus anatum) , and the fight- noted clapper rail (Rallus longirostris levi s) re federally listed. The Belding's savannah sparrow (Passercu us sandwichenis beldingi ) is state ' listed. The latter two species are residents of--the salt marsh and absolutely depend on it for survival (Zedler, 1982a) . In addition, the aesthetic and open space value of southern California coastal wetlands is significant . Onuf et al . ( 1978) note that coastal wetlands probably support higher densities of big, active animals, especially birds, than any other major habitat type in the United States. The small size of most of the remaining ' southern and central California coastal wetlands, the low stature of the marsh plants, and the close proximity of many of these wetlands to densely populated areas allow easy viewing of a wide variety of birds in their natural setting. a. Resource values of the Huntington Beach wetlands ' In 1983, the Department of Fish and Game (DFG) prepared, at the Commission's request , a report concerning the status of the Huntington Beach wetlands. The report was prepared pursuant to ' Section 10111 of the Coastal Act which provides for the study of degraded wetlands by the Department of Fish and Game in cunsultoi :ur, with the Commission and the Department of Boating and Waterways . 1 1 Page 12 The Department of Fish and Game summarized its findings as follows: ' Based upon examination of historical mapping, existing biological data, and upon the definitions and criteria outlined herein, the Department finds that of the 162. 6 acres within the study area, 149.9 acres are historic wetland and 12.7 are historic upland (Table 1) . We find that of the 149.9 acres of ' historic wetland within our study area, 114.7 acres (76.5%) continue to function viably as wetlands. The Department finds that all 114. 7 acres of wetland identified are degraded t pursuant to the definition established herein. However, we ' also find that 113.9 of these 114.7 wetland acres (99%) provide either high or moderate habitat values to wetland-associated birds. Further, the Department finds that major restoration efforts would not be required to restore and enhance wetland values on 114 . 7 acres identified in this report. The DFG report discussed the historical importance of the ' Huntington Beach wetlands: The study area is a remnant of a once extensive wetland area which existed at the mouth of the Santa Ana River (Figure 1) . This wetland was historically connected to Newport Bay by the meandering Santa Ana River. The present wetland ( 114. 7 ac. ) is all that remains of approximately 2,000 acres of historic ' wetlands which existed upcoast (northwest) from what is now the Santa Ana River Flood Control Channel. This reduction in area of nearly 95% has occurred primarily due to the channelization of the Santa Ana River and other drainage courses and ' subsequently from encroachment of residential, commercial and industrial developments in the City of Huntington Beach. The study area has been formally classified as wetland by the State of California since at least 1971 (Radovich 1980; Appendix 3) ' The report also included a description of the present status of the r wetlands: ' There presently exist 114. 7 acres of viably functioning wetlands in the study area. These wetlands are non-tidal in nature. They are primarily a combination of vegetated and ' non-vegetated wetland flats, and manifest various salinity regimes. Dominant plant species include pickleweed (Salicornia virginia) , alkali heath (Frankenia grandifolia ) and slat grass Distichlis s icata) in sa t marsh areas; spiny rush (Juncus ' acutus ) and bulrush (Scirpus spp. ) in brackish water marsh areas; and .cattail (Typha spp. ) in freshwater marsh areas. Salicornia virqinia an o logate hydrophyte, is clearly the predominant plant species in the study area. . . ' The invertebrate population provides a forage base for an I 1 Page 13 abundant and diverse complement of wetland-oriented bird species. At least 83 bird species have been observed in the Huntington Beach Wetlands (Appendix 2) . Of the 83 species, 53 species are wetland-associated birds. Included among the species known to occur in the study area are the federally and state-listed endangered California least tern and the ' state-listed endangered Belding's savannah sparrow. Bird censuses. . .indicate that of the 114.7 acres of existing wetland in the study area 113.9 of these acres (99%) provide either high or moderate habitat values for wetland-associated birds. ' Of the 12.7 acres of historic upland, 8. 7 acres adjacent to PCH and downcoast (generally southeast) from the power plant are composed of coastal dune habitat, willow thickets and ' transition vegetation, and are environmentally sensitive pursuant to Coastal Act Sections 30107. 5 and 30240. These 8. 7 acres provide desirable habitat diversity to the overall study ' area, and constitute approximately 35% of all remaining coastal dune habitat in northern Orange County (the remaining roughly 65% being located primarily in the Bolsa Chica Ecological Reserve) (See :. FG 1982) . . . ' b. Land Use Plan Policies As noted above, the wetlands area in the City of Huntington Beach ' from Beach Boulevard to the Santa Ana River is part of the last remaining remnant of the once extensive salt marsh and estuary complex of the Santa Ana River which encompassed over 3000 acres. ' The area 's primary resource value is as habitat for marsh dependent bird species. The area presently serves as a waterfowl wintering area, providing valuable nesting and feeding areas on the winter migration route. The wetlands provide a critical food source and ' breeding habitat for the endangered California least tern and the endangered Belding 's savannah sparrow. ' In 1982, in its previous action on the Huntington Beach LCP, the Commission certified the City's LCP in geographic part and denied certification in part for the two wetland areas within the City: the Metropolitan Water District (MWD) parcel adjacent to the Bolsa ' Chica and the area from Beach Boulevard to the Santa Ana River . The Commission found in its action on the LUP, the findings for which are hereby incorporated by reference, that: ' The LUP as resubmitted fails to conform to the Resource protection policies of the Act in the following significant areas: ' 1 ) The LUP fails to orovide land use designations and standards to ensure protection and restoration where feasible of wetland resources identified consistent ' with the Coastal Act definition . Page 14 a 2 ) The LUP as resubmitted while referring to wetland as 'potential • (page 61 ) or "possible' (page 59) ' wetlands and acknowledging their identification by the Department of Fish and Game in a preliminary determination, designates wetland areas for uses not allowed by Section 30233 of the Coastal Act. The Commission further found that the land uses proposed for the wetland areas would conflict with the energy policies of the ' Coastal Act which address the siting and expansion of power plants and energy facilities. The Commission concluded that: The Plan as resubmitted would result in the filling of over 130 ' acres of wetland with an irreversible loss of habitat value and productivity and loss of habitat for endangered species. Further, the plan precludes higher priority coastal dependent uses on the MWD site and precludes potential restoration of wetland resources on that site. The Commission made similar findings in its original denial of the ' 1.UP in 1981 , the findings for which are hereby incorporated by reference. The City's LUP resubmittal for the area of deferred certification from Beach Boulevard to the Santa Ana River contains new land use designations for major portions of that area (Exhibit 2 ) . The proposed land use designations include 'Visitor-Serving { Commercial' , 'Conservation' , 'Industrial Energy Production•, and ' Industrial Energy Production/Conservation' . In addition, the LUP ' resubmittal includes the resubmittal of the Coastal Element policies including the environmentally sensitive habitat, visual resources, energy policies, etc. The 'Conservation' and "Industrial Energy Production/Conservation" designations for 141 . 5 ' acres of wetland/coastal dune/upland habitat (in conjunction with the environmentally sensitive habitat policies of the Coastal Element ) would provide protection for these environmentally ' sensitive habitat areas consistent with the environmentally sensitive habitat and wetlands policies of the Coastal Act . The designations are consistent with these policies because: 1 ) they allow for the following kinds, location and intensity of land uses ' consistent with Section 30233 and 2) the land use designations and/or other policies provide for development meeting the other tests of Section 30233 - that there are no feasible, less environmentally damaging alternative and feasible mitigation is ' provided/required as well as the energy policies of the Coastal Act . The 'Conservation' designation allows certain low intensity ' resource protective activities including picnic and observation ' areas, nature trails and peripheral bike paths, informational signs or displays, and peripheral parking areas. The 'Industrial Energy Production/Conservation' designation is intended to allow the existing wetland area to be protected and restored while not ' precluding the option of power plant expansion onto this site if no feasible less environmentally damaging alternative and if aoprooriate mitigation is provided. The 141 . 5 acre figure reflects I ' Page 15 ' the Department of Fish and Game 1983 Wetland Determination of 149.9 acres of historic wetland minus former (not restorable) wetland and upland habitat west of Beach Boulevard and a strip area along ' Pacific Coast Highway east of Beach Boulevard. C. Hamilton Avenue Extension ' The land use designations limit allowable uses in wetlands, however, the resubmitted LUP includes a provision for the extension of Hamilton Avenue from Newland Street to Beach Boulevard. The areas that would be bisected by this allignment of the extension have been identified in the Department of Fish and Game wetlands determination as restorable former wetlands and degraded saltmarsh/salt flat wetlands. The DFG has also determined that the ' affected areas support 'Moderate• and •High• use by wetland-associated birds. The City states that an extension of Hamilton Avenue is needed to ' provide an alternative circulation route to Pacific Coast Highway. The extension wou" also, the City maintains, provide increased access to the coa_ _ for beach users and would improve public safety ' as it would ser% as an alternative route to the beaches and downtown area for fire and emergency vehicles. The City's proposal states that : ' The Hamilton extension will be constructed in such a way as to minimize impacts on the wetland. This includes raising the entire structure on pilings if necessary. Appropriate ' mitigation shall be provided. It is the City's intent that no net loss of wetland occur . Any wetland which is filled or reduced in productivity by the project will be replaced by restoring otherwise degraded or non-functioning wetland as close as feasible to the project site. ' In its previous actions on the LUP in 1981 and 1982, the Commission noted that the proposed extension of Hamilton Avenue would result in the filling of identified wetland areas. The Commission also found that roads are not a permitted use for which filling of wetlands is permitted under Section 30233 of the Coastal Act, except as part of energy expansion allowed by Section 30233 and the energy policies of the Coastal Act. In its 1981 action, the Commission adopted a suggested modification (and the City adopted the policy below as part of its Coastal Element) which provided that no fill for road construction would be allowed in wetlands except as provided by Section 30260 for coastal dependent ' industrial uses and Sections 30262-30264 for allowable energy facilities and shall be limited only to access roads appurtenant to the facility to serve uses permitted by Sections 30260-30264 . Ariy ' proposed road also had to meet the other policy tests of having no feasible less environmentally damaging alternative and providing feasihle mitigation. 1 Page 16 ' The LUP resubmitted in 1982 incorporated policy modifications ' similar to the Commission's adopted suggested modifications. The new LUP policy (9e) provides as follows: 9e. Prohibit all uses within the Least Tern nesting site on Huntington State Beach except those related to habitat restoration. Prohibit fill in any wetland areas for the purpose of road construction, except for roads required to ' serve uses allowed in wetlands pursuant to and consistent with Sections 30260-30264 for coastal dependent and energy uses. Also, if a project were approved pursuant to and consistent with Section 30233(a) ( 3) , and a road was part ' of the approved project, such road would be permitted in portions of the severely degraded wetland where development is permitted. Any roads governed by this policy shall be limited to necessary access roads appurtenant to the facility, and shall be permitted only where there is no feasible less environmentally damaging alternative and where feasibility mitigation measures have ' been provided. It is significant to note that this policy was adopted prior to the final Department of Fish and Game Section 30411 wetlands ' determination report , which found that the wetlands in this area , were not so severely degraded as to require major restoration. ` Projects approved pursuant to Section 30233(a) ( 3) pertain only to ' wetlands identified as so severely degraded as to require major restoration. The Commission previously found that the policies and standards ' contained in the resubmitted LUP were consistent with the Coastal Act but denied the land use designations for the identified wetlands areas because they allowed filling of wetlands for uses not consistent with the Coastal Act and would have resulted in ' significant loss of wetland and other environmentally sensitive habitat areas. The Commission certified environmentally sensitive habitat area policies for the geographic area excluding the wetlands areas, finding that the policies themselves were consistent with the Coastal Act. However, as the LUP was denied in geographic part, neither policies nor land use designations were certified for this area. Now, the City has resubmitted its ' certified environmentally sensitive habitat area policies along with new land use designations to comprise a resubmittal LUP for the geographic area denied certification by the Commission in 1982. ' Policy 9e, as the Commission previously found, is consistent with the Coastal Act in that it would protect wetlands, allowing road extensions only as part of allowable coastal dependent or energy ' uses permitted by Section 30233(a) ( 1 ) and only where there is no feasible alternative and where mitigation is provided. The LUP as resubmitted includes the extension of Hamilton Avenue which is not Page 17 consistent with Policy 9e or Section 30233 of the Coastal Act as the Hamilton extension is not part of any coastal dependent or energy related project and is not one of the permitted uses of Section 30233 of the Coastal Act. . of all the environmentally sensitive habitat areas mentioned specifically in the Coastal Act, wetlands and estuaries are afforded the most stringent protection. In order to approve a project involving the diking, filling, or dredging of a wetland or estuary, the Commission must first find that the project is one of 1 the specific, enumerated uses set forth in Section 30233. In addition, permitted development in these areas must meet the requirements of other applicable provisions of the Coastal Act. The activities and types of development permitted in wetlands, pursuant to Section 30233, are as follows: 1 . Port facilities ' 2. Energy facilities 3. Coastal-dependent industrial facilities, such as commerci; " fishing facilities 4 . Maintenance of existing or restoration of previously dredged depths in navigation channels, turning basins, vessel berthing and mooring areas, and boat launching ramps 5. Incidental public service purposes which include, but are ' not limited to, burying cables and pipes, inspection of piers, and maintenance of existing intake and outfall lines 6. Restoration projects 7. Nature study, aquaculture, or similar resource-dependent activities 8. In wetland areas only, entrance channels for new or expanded boating facilities may be constructed, except that in a degraded wetland, other boating facilities may be permitted according to the requirements of Section 30411 9. New or expanded boating facilities in estuaries The Commission has consistently found that protection of wetland resources is a high priority of the Coastal Act, and has denied development which would have resulted in the filling of wetlands, or conditioned projects to avoid filling of wetlands. In many previous actions, including the 1981 denial of the City's LUP, the 1982 certification of the LUP excluding the wetland areas, certification of the County of San Diego, San Dieguito segment LUP, and previous permit actions including A-328-78 (Hawthorne) the Commission made findings regarding the importance of protecting wetlands and related habitat. The Commission found in its review of the San Dieguito LUP that a specific policy which limited the ' type of use and development permitted in wetlands was protective of wetland resources consistent with Section 30233 and addressed concerns regarding road extension and widening projects adjacent to San Elijo and Batiquitos Lagoons. In A-156-79 (Carmel Valley Road) , the Commission initially denied a proposed road widening and reeiignment tnat would have resulted in wetland fill . The Page 18 Commission later, however, approved the project which was intended to eliminate a dangerous curve situation after the project had been ' redesigned and modified to mitigate wetland fill to the maximum extent feasible. In previous actions on proposed road extensions through wetland areas, the Commission has also found that limited expansion of roadbeds and bridges necessary to maintain existing traffic capacity may be permitted only when no other alternative exists and when consistent with the other provisions of Section 30233. Similarly, in this case, the Commission notes that the intent of { the proposed Hamilton Avenue extension is to serve a public service ' that is as an alternate route to Pacific Coast Highway for emer ency vehicles. Prese--nt-Fy-, emergency vehicles are hindered b the lack of alternate routes when Pacific Coast Hiq way is impassable due to congested tratfiZ. The C ty intends to extend walnut Avenue from the downtown to Beach Boulevard where it wou d meet the exten a Hamilton Avenue. This would create a new cross-town axis alonq Walnut and Hamilton Avenues froF the downtown ' to t e Santa Ana River . The extended Hamilton Avenue in con3unction wit . the Wa nut Avenue extension woul serve to enhance emergency vehicle traffic between the owntown an the southeastern area of the city. ' In its action in 1984 on the Marina Del Rey/Ballona LUP of the County of Los Angeles LCP, the Commission approved the extension of ' Falmouth Avenue through an area of severely degraded wetlands proposed for restoration in the LUP. The Commission found that the extension was consistent with the requirements of Section 30233(a) (7) of the Coastal Act as it was part of a restoration , project and was the least environmentally damaging alternative for restoring the wetland as modified to be elevated on pilings. The suggested modifications to the LUP required that the road extension be elevated on pilings "to insure: maximum flow of water, movement ' of mammals and avian species and clearance to permit periodic maintenance. " The• Commission based its decision partly on evidence supplied by the Department of Fish and Game (DFG) in a letter to the Commission. The DFG stated that the extension of the road in ' combination with an expanded wetland restoration program was "more protective of coastal wetland resources than the preclusion of the proposed extension and no wetland restoration. ' The DFG also expressed concern that without approval of the LUP including the Falmouth extension and the restoration plan proposed by the landowner , the use of the area for agricultural purposes would be ' expanded and thereby further diminish wetland habitat values. The Commission concluded that: The proposed extension of Falmouth Avenue through a portion 6f the degraded wetlands designated for restoration, is permissible as part of a restoration plan even though roads are nor idPntifiaa as a permitted use in Section 30233 of the Act. 1 ' Page 19 ' The Commission's Interpretive Guidelines for Wetlands and Other wet Environmentally Sensitive Areas (p. 14) declare that •additional flexibility will be allowed for restoration ' projects located in wetlands which are degraded (as that term is used in Section 30411 of the Coastal Act.' The Guidelines go on to state (p. 24) that 'restoration projects under this approach may include uses that are not permitted in Section 30233 if the project meets all of the other requirements of Section 30233 and 30411. 0 ' The Commission notes that the there are significant differences between the Ballona wetlands and the Huntington Beach wetlands. One major difference between the two areas is the Department of Fish and Game wetland determinations prepared for each area. The DFG determined that the overall Ballona wetland system is severely degraded and requires a major restoration plan. The Huntington Beach wetlands, however, though determined to be degraded wetlands, ' were found by the DFG to be 'not so severely degraded that major restoration efforts are require3. 1 (emphasis added) (DFG Determination of `- e Status of the Huntin ton Beach Wetlands, February 4, 1983T. The DFG found that 114. 7 acres $ of the ' 149. 9 acres of historic wetland 'continue to functionally viably as wetlands" and major restoration was not necessary to restore and enhance wetland values. The Commission finds that the precise alignment of Hamilton Ave. can not be a rove . wit out the necessary environments ocumentation showing the least environmentslly dama;y'ing feasible ' a ternative is the chosen alternative. However, the Commission finds that there is a need to proMe an a ternative route paralleling Hwy 1 for public sa ety needs. The Commission further finds that such minimization of impacts shall include, at a minimum; ( 1 placing of the roadway in an a ignment w ich is most protective ot wetland abitats, whicK may require the entire road to be constructed on pilings or other road cosigns such as bridging over the wetlands, 2limiting the wi th of roadway by narrowing lanes and eliminating shoulders, and ( 3) requiring ul mitigation or any impacted wetland. The Commission also finds that the EIR, which will need to be done before this project could occur, will need to adequately address- the alternative alignments for Hamilton Ave. and will need to address the mitigation needs generatefrom e-ach alternative. The City argues that the Commission has approved a number of roads, such as Falmouth Avenue, as part of wetland modification proposals, and that the extension of Hamilton would be consistent with these previous decisions. The Commission disagrees. In most of the specific examples where the Commission has approved construction within a wetland, the wetland was a 'severely degraded wetland" ( e.q. Ballona and Bolsa Chica) . Inherent in the determination that a wetland system is a 'severely degraded wetland" is the associated 1 Page 20 1 determination that is is not capable of recovering and maintaining a high level of biological productivity without major restoration ' activities. ' In the case of the Huntington Beach wetlands, the Department of Fish and Game has identified the wetlands as having extraordinarily high values for bird habitat. Indeed, the nesting intensity of the endangered Belding's savannah sparrow is so high in these areas that even enhancement activities are likely to be counterproductive. Thus, unlike the situation in the Ballona, Bolsa Chica, Batiquitos, Los Cerritos, and other wetlands, intervention is not essential to assure the maintenance of habitat , values, and restoration efforts are likely to be slight. l Although the City has indicated its intent to mitigate any wetland ' fill resulting from this project, the Commission is concerned about the practical problems of implementing wetland restoration efforts. In reviewing the proposal to fill approximately 110 acres in outer Long Beach Harbor, the Commission heard testimony about the practical problems involved in putting together wetland restoration projects and having them successfully completed. These ' problems are even more serious in an area like Orange County where the market has set the acquisition cost of potentially restorable land at extremely high levels. The practical problems of restoration are immense, as the Coastal Conservancy has found in ' its restoration planning efforts for these wetlands. There are not enough clearly defined uplands available to be able to assure direct mitigation. The City maintains that the Hamilton extension is needed as 'an alternative circulation route to Pacific Coast Highway• and in this capacity would provide •visitor serving access to the beaches, as , well as. . .an alternative route for non-visitor traffic. ' The extension would also, the City states, provide a route for fire and emergency vehicles -to the beaches and the downtown area. The Commission finds, however, that the Coastal Act does not permit ' fill in wetlands in order to enhance access to the coast. The Commission notes .that Hamilton Avenue runs parallel to the coast and its extension would not perceivably enhance access from inland ' areas. The Commission is also concerned about the City's reference ' to 'raising the entire structure on pilings if necessary.0 and the provision of gappropriate mitigation• (emphasis added) . It is not clear who or what determines if pilings are 'necessary' nor what exactly is 'appropriate' mitigation. The City, although stating that the extension would serve emergency vehicles, has not t demonstrated any need for the extension based on public safety concerns. ' There is also no discussion of feasible alternatives that would avoid wetland fill. Such alternatives could include rerouting the , extension to avoid the wetlands, 'bridginq' the wetlands area to prevent any fill for pilings, or a combination thereof. The City a:;.a:native routings of the Hamilton extension in its Page 21 ' Anal sis Of Land Use Alternatives For The 'White Hole' Areas (Revised May The three alternatives nc u e construction on pilings for the length of the extension (this alternative would involve the most fill) , 2) construction on pilings from Beach Boulevard to the tank farm (thereby reducing wetland fill) , and 3) no project. The alternatives discussed in ' the report did not include an extension which would not involve wetland fill such as an extension across the tank farm connecting to a bridge across the wetlands -between the tank farm and Beach Boulevard. The Commission further notes that the resubmitted LUP does not clearly indicate which alternative was chosen or why. The discussion of the extension in the LUP is vague and general in nature. As discussed above, Section 30411 of the Coastal Act allows uses in severely degraded wetlands formally identified by the DFG that would- not be permitted pursuant to Section 30233 of the Coastal Act if the project meets all of the other requirements of Section 30233 and Section 30411. Section 30411 states, in part, ' that any DFG study of a degraded wetland shall include consideration of: ( 1 ) Whether one wetland is so severely degraded and its natural processes so substantially impaired that it is not capable of recovering and maintaining a high level of biological productivity without major restoration activities. The Commission notes that the DFG has, pursuant to Section 30411, formally determined that the Ballona wetlands are severely degraded and incapable of recovering and maintaining a high—level of ' biological productivity without major restoration efforts. In contrast, the DFG made findings related to Section 30411 for the Huntington Beach wetlands which stated that major restoration efforts are not- required for the existing wetlands. The DFG found that: ' These wetlands could easily be enhanced by reestablishing controlled tidal flushing due to their existing low elevation. . . ,their immediate adjacency to the tidal waters of the flood control channel, and the demonstrated ease and I efficiency with which this water may be used for restorative purposes. The Commission further finds that feasible mitigation measures must be provided for Dermitted wetland fill projects in order to minimize adverse environmental effects of the project . The Land Use Plan resubmittal provides, as noted above, that the Hamilton Avenue extension will minimize impacts on the wetlands. The LUP also states that the minimization of impacts on the wetlands includes raisina the entire structure on i ings, if necessary, and that appropriate mitigation shall be provided. The LUP concludes that Page 22 It is the Cit ' s intent that no net loss of wetland { occur. Any wetiand which is filled or re uce in - productivity by the project will be replaced b restoring otherwisedegrade or non- unctionin wet an as close as ease a to the project site. The Commission finds that it is only with this guarantee bX the ' cat t at no net loss of wetlands will occur as a result of this pro3ect, that the project will maintain or enhance the functional ' capacity o t e wet an s an3 that mitigation measures will be provided to minimize the adverse impacts of the ro ect t at the Commission can find the ro osea Hamilton Avenue extension consistent with the provisions of Section 30233 of the Coastal Act. t The Commission finds, therefore, that though the Falmouth Avenue extension was found by the Commission, in consultation with the Department of Fish and Game, to be consistent with Section 30233 and Section 30411 of the Coastal Act, no such grounds exist in the case of the proposed Hamilton Avenue extension. The Huntington Beach wetlands, in contrast to the Ballona wetlands, are not so ' severely degraded that major restoration efforts are required. The Falmouth extension was found consistent with Sections 30233 and 30411 as it was part of a major restoration plan for a severely degraded wetland. These findings can not be made for the Hamilton ' extension. The Commission further finds, therefore, that for the reasons discussed above, the Land Use Plan is inconsistent with the environmentally sensitive habitat, marine resources, and wetland , policies of the Coastal Act. The Commission notes that the resubmitted LUP designates a seven acre strip along Pacific Coact Highway between Beach Boulevard and , Newland Street as •Visitor-Serving Commercial' . This area has been determined by the Department of Fish and Game in its 1983 Determination of the Status of the Huntington Beach Wetlands to be upland and former wetlands which is not restorable. The proposed visitor-serving uses would not therefore involve any fill of wetland. The visitor-serving designation is appropriate as the site is located at the terminus of the major access route (Beach , Boulevard) from inland areas to the beach. The Commission finds, therefore, that the land use designation of 'Visitor-Serving Commercial' , proposed for a seven acre strip along Pacific Coast Highway, is consistent with the environmentally sensitive habitat, wetland, and public access policies of the Coastal Act. 1 1 ' ' Page 23 III. FINDINGS FOR SUGGESTED MODIFICATIONS ' A. Environmentally Sensitive Habitat Areas 1. Wetlands ' Of all the environmentally sensitive habitat areas mentioned specifically in the Coastal Act, wetlands are afforded the most stringent protection. In order to approve a project involving the ' diking, filling, or dredging of a wetland, the Commission must first find that the project it one of the specific, enumerated uses set forth in Section 30233 of the Coastal Act. In addition, ' permitted development in these areas must meet the requirements of other applicable provisions of the Coastal Act. The Commission has consistently found that protection of wetland resources* is a high priority of the Coastal Act, and has denied development which would ' have resulted in the filling of wetlands (except for permitted uses or where the development was part of a major restoration plan) or conditioned proje : s to avoid filling of wetlands. The Commission ' finds that, for the reasons discussed above in the findings for denial of the LUP, the proposed Hamilton Avenue extension is not a permitted use allowing fill of wetlands pursuant to Section 30233 of the Coastal Act. The Commission finds that only as modified to ' delete the proposed Hamilton Avenue extension as proposed would the resubmittal LUP be consistent with the wetlands and environmentally sensitive habitat policies of the Coastal Act. The Commission further finds, therefore, 'that the Land Use Plan, as modified, ' conforms with Section 30233 and is consistent with the environmentally sensitive habitat, marine resources, and wetland policies of the Coastal Act. V. ENERGY FINDINGS ' Section 30260 of the Coastal Act provides; Section 30260 ' Coastal-dependent industrial facilities shall be encouraged to locate or expand within existing sites and shall be permitted reasonable long-term growth where consistent with 1 this division. However, where new or expanded coastal-dependent industrial facilities cannot feasibly be accomodated consistent with other policies of this division, they may nonetheless be permitted in accordance with this ' section and Section 30261 and 30262 if ( 1 ) alternative locations are infeasible or more environmentally damaging; ( 2 ) to do otherwise would adversely affect the public welfare; and ' ( 3) adverse environmental effects are mitigated to the maximum extent feasible. Page 24 ' { Section 30264 of the Coastal Act states as follows: ' Section 30264 Notwithstanding any other provision of this division, except subdivisions (b) and (c) of Section 30413, new or expanded thermal electric generating plants may be constructed in the coastal zone if the proposed coastal site has been ' determined by the State Energy Resources Conservation and Development Commission to have greater relative merit pursuant to the provisions of Section 25516.6 than available alternative r sites and related facilities for an applicant's service area ' which have been determined to be acceptable pursuant to the provisions of Section 25516. A. Power Plant Siting and Expansion 1 . Background , The Coastal Act and the Warren Alquist Act (Energy Commission Legislation) provide a combined approach to power plant siting within the coastal zone with the California Energy Commission given ' the overall permit authority for power plant siting within the state. Other state and local agencies participate in the Energy Commission siting proceedings as interveners. However, the Coastal ' Commission has a special role with regard to siting power plants in the coastal zone. The following discussion describes the Commission role relative to the Energy Commission and the need for adequate policies in the LUP to assure that coastal protection ' policies are implemented during power plant siting procedures. 2. Areas Unsuitable for Power Plant Siting The Coastal Act (Section 30413(b) ) requires the Commission to ' "designate' areas where the construction of an electric power plant would prevent achievement of the objectives of the Coastal Act. ' The Energy Commission cannot approve the construction or operation of any thermal power pint in an area that has been designated by the Commission in this process. Section 30413(b) requires that the Commission not designate specific locations which are presently ' used for power plants or surrounding areas that could be used for ' reasonable expansion• of the facilities. 3. Power Plant Siting Proceedings ' Whenever the Energy Commission exercises its siting authority and undertakes proceedings for the possible location of a power plant ' within the coastal zone, the Coastal Commission prepares a specific report on the proposal . The Commission prepares this report for rhP F; rcr stage of the siting process where several sites are 1 Page 25 ' evaluated and one or two are ranked and granted conceptual approval (Notice of Intention, NOI) , and during the actual permit or certification process Tor one site (Application for Certification ' AFC) . The Commission report includes an analysis of the potential impacts of the proposed project and possible methods to mitigate the impacts. The Energy Commission must implement the ' recommendation included in the report unless to do so would result in greater environmental damage or would not be feasible. 4. Issues Relating to the Huntington Beach Power Plant Areas ' 5esignated as Not Suitable As part of the Commission's adopted Power Plant Siting Study, ' •Designation of Coastal Zone Areas Where Construction of an Electric Power Plant Would Prevent Achievement of . the Objectives of the California Coastal Act of 19761 , Nov. 1979) the Commission has designated some of the property south of the Huntington Beach Power ' Plant as unsuitable for siting because of valuable wetland habitat. The designated wetland system extends south of the existing Huntingtc- Beach Power Plant as discussed in this report. ' However , the northwest portion of the wetland was not designated as unsuitable so that reasonable expansion of the facility would not be precluded by the designations. (This non-designation of. the wetland area in Huntington Beach was not based on resource value or ' suitability for siting, but rather on tFie requirements of the Act that reasonable expansion not be precluded. ) The power plant presently has room to expand into the mud dump area north of the Talbert Channel rather than into the wetland. As stated ' previously, the Commission must assure that reasonable expansion of the power plant is not precluded by the power plant resource protection designations. ' 5. Edison Notice of Intention The Commission in October 1978 unanimously adopted a report on the ' Edison Combined Cycle Power Plant Notice of Intention concerning the proposed expansion of the existing Huntington Beach Power Plant facility. The Commission found that the most serious impacts of ' the proposed power plant expansion would be the filling of the adjacent wetland and the associated environmentally sensitive habitat. The resource value of this area has been discussed above. The Commission found that the area inland of the existing ' facilities could provide a feasible less environmentally damaging alternative location for expansion of the Huntington Beach facility. Section 30233 of the Coastal Act mandates that energy facilities can only be sited in wetlands if there is no feasible ' less environmentally damaging alternative, if the functional capacity of the wetland is maintained or enhanced, and if mitigation measures have been provided to minimize the adverse environmental effects. The Commission report directed the Energy Commission to analyze and reach conclusions regarding the feasibility of power plant construction and the potential 1 Page 26 environmental damages associated with the use of the inland area in place of the wetland. The report stated that if such conclusions , of feasibility could be reached, then the expansion should occur on the inland area thus avoiding or minimizing the use of wetland areas for proposed power plant facilities. If expansion could only occur on the wetland adjacent to the existing power plant and northwest of Magnolia Street the Commission report than recommended that Edison be required to acquire and restore the wetlands to the south of the affected area. ' Additionally a permit (A-342-78 Sand Dollar) for a 9 lot industrial subdivision was denied during this period because of the t possibility of using the inland property for expansion of Edison , instead of wetland should the Energy Commission choose Huntington Beach from the four sites. However, when the proposed expansion was not approved for Huntington Beach, the coastal permit was issued, releasing the inland property for development . The existing mud dump however, still remains a potential area available for energy facility expansion. B . Previous Commission Findings ' The Commission found in its 1981 action on the City' s LUP that the resubmitted plan failed to conform to the energy and resource ' protection policies of the Coastal Act in relation to power plant siting and expansion. The Commission found that the proposed 'Industrial Energy Production• land use designation did not provide ' standards which require the expansion of the power plant facilities in feasible less environmentally damaging alternative sites first, such as the mud dump and the designation also failed to incorporate standards to ensure protection of wetland resources in conjunction ' with allowable energy expansion if alternative inland sites are infeasible. In . its suggested modifications, the Commission recommended that the- designation of the area including and south of the power plant to the Santa Ana River be changed from •Visitor ' Serving Commercial' and •Industrial Energy Production• to 'Conservation/Industrial Energy' . The Commission further found that power plant facilities should be prohibited in the area southeast of Magnolia Street as specified in the power plant siting ' study. The suggested modifications contained three policy modifications which development within the area designated 'Conservation/Industrial Energy' would be subject to: ' 1. Such uses shall be permitted consistent with other provisions of the LUP only where there is no feasible, less environmentally damaging alternative and where ' maximum feasible mitigation measures have been provided to minimize adverse environmental effects, and the functional capacity of the wetland is maintained or enhanced. ' 1 Page 27 ' 2. As a condition precedent to any energy facility expansion or development into the wetlands south of the power plant ' and north of Magnolia Street energy facility. expansion inland to the Mud Dump must be undertaken or the infeasibility of doing so demonstrated. The determination ' of infeasibility will be made by the Energy Commission during or before the Notice of Intention Proceedings. 3. If further expansion or development of power plant ' facilities and necessary accessory facilities on the inland site is infeasible or causes greater environmental damage as determined in t2 above, then such power plant expansion may be permitted north of Magnolia Street ' provided that not less than two and one half acres of wetlands south of Magnolia are permanently protected by conservation easements, dedications or other similar ' mechanisms for each acre of wetlands filled for development, and that a program acceptable to the Dept. of Fish and 'ame is implemented to assure long term habitat enhancement or restoration of these protected wetlands. 1 Vehicular access shall be prohibited in conservation easement areas. The Commission concluded that the suggested modifications were ' necessary in order to provide for a reasonable expansion of the existing power plant consistent with the protection of wetland resources. The first priority for siting power plant facilities, ' the Commission found, would be at any available inland site. The Commission further found that the City's LUP should contain conditions for energy expansion into wetlands which would ensure specific mitigation and maintenance of the functional capacity of ' the wetland. in its 1982 action certifying the LUP in geographic part, the Commission denied the portions of the LUP which applied to the ' wetlands areas of the City, i .e. the MWD parcel and the Beach Boulevard to Santa Ana River area. The findings for denial in geographic part concentrated on two policy areas: energy and environmentally sensitive habitats. In regard to energy, the ' Commission found that: The LUP as resubmitted proposes no modifications to the plan as it relates to land use designations on the parcels adjacent to ' the existing thermal power plant. As the Commission found in its previous action on the LUP the proposed land use designation, 'Industrial Energy Production' fails to provide ' specific standards for expansion of power plants and mitigation for such expansion. ' The Commission found that the proposed land use designation of" Industrial Energy" and other LUP policies did not conform with the policies uc Cnapter 3 of the Coastal Act and were not consistent 1 Page 28 ' with previous Commission findings for the Edison Notice of ' Intention (01 ) or the Commission power plant study designations. In order to find the proposed land use designations consistent with the Coastal Act, the Commission determined that: 1 . The land use designations must specify permitted uses and such uses should not preclude reasonable expansion of the existing Huntington Beach Power Plant as indicated in ' Section 30413(b) of the Coastal Act. 2. The land use designations must reflect the previous Commission findings that power plant expansion priority ' should be given to the area inland of the Talbert Channel, and, conditions of and mitigation measures for an energy expansion into wetlands must be provided consistent with the mandatory provisions of Section 30233 and the energy policies of the Coastal Act. 3. The land use designations must protect wetland areas which I are not required for reasonable expansion of the existing Huntington Beach Power Plant, consistent with Section 30233 of the Act and Commission findings of the power plant siting study. ' C. Findings on the Resubmittal of the LUP for the Wetlands Area from Beach Boulevard to the Santa Ana River Regarding Energy ' Expansion The City in its resubmittal of the LUP has redesignated a 17-acre parcel adjacent to the Edison power plant as 'Industrial Energy Production/Conservation' . A 'Conservation' overlay has been applied to the original land use designation of 'Industrial Energy Production' . The intent of the overlay as explained in the resubmittal is: ' . . .to protect certain unique or environmentally sensitive areas without precluding other options which may be allowed under the ` Coastal Act. Conditions to be imposed by the overlay include I mitigation measures to maintain or enhance the functional capacity of the wetland. In the 'Area-By-Area Discussion' section of the Land Use Plan, the I City further describes the intent of the 'Industrial Energy i Production/Conservation' designation as follows: The designation is intended to allow the area to serve as a I Conservation area for the short term, but be available for possible future expansion of the power plant, if necessary, in I the long term, provided that there is no feasible, less environmentally damaging alternative, and appropriate mitigation is provided. I I r _ Page 29 ' The Commission's concerns as discussed above include provision for the reasonable expansion of the power plant and protection of identified wetland areas. The new land use designations for the ' area between Beach Boulevard and the Santa Ana Rivsr addresa these concerns. The proposed 'Industrial Energy Production/Conservation' designation is protective of wetland resources on the parcel adjacent to the power plant but also does not preclude the expansion of the plant into that area if it is deemed that 'there is no feasible, less environmentally damaging alternative and appropriate mitigation is provided. ' The Commission notes that ' feasible less environmentally damaging alternatives include power plant expansion inland of the Talbert channel. The overlay requires that conditions on future development, i.e. power plant expansion, include mitigation measures to maintain. or enhance the functional capacity of the wetland. The Commission notes that in previous actions where wetland fill has been approved for permitted uses, such projects were required to restore wetlands, often at ' ratios of 2/1 or greater, in order to ensure that no net loss of wetland occurred. ^'---e City's 'Conservation' overlay recognizes the need for wetland r _oration by requiring conditions that include mitigation measures which maintain or enhance the functional capacity of the wetland. The Commission finds, therefore, that the "Conservation" ' designation for the area south of the Edison plant and the adjacent 17-acre 'Industrial Energy Production/Conservation' designated parcel is consistent with the Commission's 1982 finding that the proposed land use designation for the area not required for reasonable expansion of the power plant must protect wetland areas. The Commission finds , therefore, that for the reasons discussed above the land use designations proposed in the ' resubmitted LUP are consistent with the energy and wetland policies of the Coastal Act. ' VI . PUBLIC ACCESS FINDINGS Sections 30001. 5, 11210, 30211, and 30214 of the Coastal Act ' provide that maximum access shall be provided, and that development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization. Section 30212 further requires that public access from the nearest public road to the sea shall be provided in new development, and Section 30214 provides that requirements for public access take into account the time, place and manner of the access. A specific public access component for Huntington Beach was certified by the Commission on November 17, 1962 as part of the City's certified in geographic part LUP. The City has included the Cna.qta] Element. , which contains the certified public access Page 30 { policies and standards, as part of the resubmittal. The Commission found in its 1982 action, the findings for which are hereby I incorporated by reference, that the LUP maximized public access consistent with Sections 30210, 30211, and 30214 of the Coastal Act. The area governed by the resubmittal LUP is bounded by Beach Boulevard, the Santa Ana River, and Pacific Coast Highway and does not include any shoreline frontage. The area does, however, contain environmentally sensitive habitat areas, i.e. wetland, coastal dune, and upland habitats. The certified Coastal Element contains a public access policy in the 'Environmentally Sensitive ' Habitats' section which states as follows: 6. 2.4 Public Access ' In coordination with the aesthetic and biological enhancement of the wetlands, the City encourages low-impact public access to allow nature study and ' enjoyment of amenities. The City will investigate strategies to provide boardwalks, peripheral trails, interpretive exhibits and other educational facilities in or adjacent to coastal wetlands so long ' as such activities do not significantly disrupt any habitat values or impair the viability of the ecosystem. ' The Commission finds, therefore, that the resubmitted LUP contains public access policies which maximize public access consistent with Sections 30210, 30211, and 30214 of the Coastal Act. The ' Commission further finds that the resubmitted LUP provides for public access in environmentally sensitive habitat areas when consistent with protection of the habitat. i VII . OTHER COASTAL ELEMENT POLICIES As noted above, the City has resubmitted the certified Coastal , Element as part of the LUP resubmittal for the area of deferred certification between Beach Boulevard and the Santa Ana River . The Coastal Element includes policies regarding public access (see ' previous section) , energy (see section V) , visual resources, environmentally sensitive habitats/diking dredging and filling, recreation and visitor-serving facilities, hazards, new I development, water and marine resources, and shoreline structures. The Commission in its action certifying the LUP in geographic part made findings as to the consistency of these policies with the Coastal Act . Those findings are hereby incorporated by reference. ' The Commission finds, therefore, that as applied to the geographic area from Beach Boulevard to the Santa Ana River, the policies referenced above are consistent with Sections 30210, 30211, 30214, 30222, 30250, 30251, 30232, 30262, 30260, 30233, 30240, 30253, ' 30235, 30230, and 30231 of the Coastal Act because as found in the ('nnm; mac: nn C nrowi ► is action, they: I 1 Page 31 1 1 ) assure access consistent with the Coastal Act provisions to maximize public access (Sections 30210 and 30211) 2) assure visitor facilities will be provided consistent with Section 30220, 30221 and 30222 3) provide policies to protect wetland and other environmentally sensitive habitat area and assure that adjacent development will not significantly degrade resources (Sections 30233, 30230, 30231, and 30240) ' 4) provide for energy development consistent with Sections 30232, 30262, and 30260 5) minimize risks and assure safety and structural stability of new development consistent with Section 30253 6) assure access consistent with resource protection including visual access to scenic resources (Section 30251 ) 7) protect -er and marine resources by controlling runoff (Sections 30230 and 30231) and protection against spills ' (Section 30232) VIII . CEQA FINDINGS ' 1 . Consistency with CEQA Pursuant to SB 1873, which amended the California Environmental Quality Act, the Coastal Commission is the lead agency in terms of meeting California Environmental Quality Act (CEQA) requirements for local coastal programs. In addition to making a finding that the LUP is in full compliance with CEQA, the Commission must make a ' finding that the least environmentally damaging feasible alternative is chosen. Section 21080. 5(d) ( 2) ( i ) of the Public Resources Code requires that the Commission not approve or adopt an LCP: . . . if there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse impact which the activity may have on the environment . The three alternatives considered by the City included various ' ratios of development to open space conservation. Alternative One was the least intensive in terms of development and designated approximately 124 acres of 'Conservation' area and five acres for ' 'Visitor-Serving Commercial ' use . Alternative Two featured 78 acres of 'Conservation' , ten acres of 'Visitor-Serving Commercial ' , three acres of 'General Commercial' , and 38 acres of 'Medium n+•ncity Residential ' . Alternative Three was the most intensive Page 32 - proposal with only 27 acres of 'Conservation•, ten acres of 'visitor-Servinq Commercial', five acres of 'General Commercial ' , 74 acres of 'Medium Density Residential' , and 13 acres of ' "Office' . All three alteratives designated 17 acres adjacent to 'Ait? Edison pow(ir plant as 'Conservation/IndustriAl Energy Production' . ' Section 30233 of the Coastal Act outlines permitted uses for which fill of wetlands may be permitted. Development is permitted in wetlands only for certain uses and only when there is no feasible ' less environmentally damaging alternative and mitigation measures have been provided to minimize adverse environmental effects. Alternatives Two and Three would result in a net loss of wetland ' and therefore raise questions of inconsistency with Section 30233 of the Coastal Act. Residential, general commercial, office and visitor-serving uses are not uses for which fill is permitted in wetlands. The City has resubmitted a Land Use Plan (for the area of deferred certification from Beach Boulevard to the Santa Ana River ) which ' resentially adopts the land use designations proposed in the most "nvironmentally protective alternative reviewed by the City, Alternative One. CEQA requires that the Commission make findings that the least environmentally damaging feasible land use alternative has been incorporated into the LCP, and .that there are no feasible mitigation measures available that could substantially reduce adverse environmental impacts. The Commission finds, for the reasons discussed in this staff report, that the resubmitted ' Land Use Plan is the least environmentally damaging feasible land use alternative and. that there are no feasible mitigation measures available that could substantially reduce adverse environmental impacts. 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R t=u � 'j O i mill � R, RI Rt RI w _ t,>, - .� . v' � F �. .� a �a •Rl /iY/s/=T1 / G� Si•Crw.T L}�D I•PZ �ry ,tt RtSirr `r A/.• OWNERSHIPAt e4 i/!j �� UO FPv. ♦►� r !' ! !+ ) , r4 eI H B.WETLANDS CONSERVANCY / ` A., ,•4ti�• V�. f jj SO CAL EDISON ocr' //Y•/fr•Fq ,�• •:•:: ::: ::<:� .. . ,J^MILLS LANDb J t I N'A1ER a p,.�J T.�[•,ri n-�/f S�C> '"t4 •'•[ti�:'�'�'''w::::: :;; f / '/�.r/` ' '• l CAL T RANS ! /�j� ` !p / • f i t PICCIRELU /jr 7'r.rn.Yc b�It -i/!j //y/�t,'•EZ•. 11' J��� ..�1••�. f • p�-..+ L..,;�/, fly- !I`/1 't tia //-i�t i! rI � �./.r /.'� C:.r tom,,,,. �7> /�Qj�//�'T�'j�`r \`f/• - C/• 4 f Z/ R�/ate•. /3:.'w+�ry ��r�4 //7A(`a'j'Z,'� y�l�: ��',.".•.� �� - LI• j W x G Z W a a a Jrt 10 .� .j +•" r(r� D/,� 0 '� I OC SANITATION TRUTMLYT PUNT ,fir 022 J/ �i1�' •!� J �J� JJJ �+ r 1f r O,CLCO C " :1 VISITUR SERVING COMMERCIAL -----IIAMILTCN EXTENSIOrl EXHIBIT A CONSERVATION m NONCERTIFIED IIIDUSRTIAL ENERGY PRODUCTION COASTAL AREA! V �NTNGfO.N !ACH IA[ND, ENERGY PRO./ CONSERVATION ZOHE: HAN6F, * `3 8 1 + "► +G oEvAaTMEM LL x C Z W IL a a r IL Jill ?is � eP : ell aqs p&CN jg Igot I. s a 1 I �' ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! o El El Jill g Hot- s 131401 % g i T s=IEI11S1 �s �s$ r e $ �Ia I I= � � i ei � Big � I �� 1 1 wit g $fs sig1� 19 �g f lliglfil ji� 9� n gal Erg 1'�I i g c=n ZM 1 IL # g[`gip. Hal -i- �/ PEAS ' Urtn *12 •1- flat,, � s s• �7 ¢ job �3�.11 � �ii gG��■���� oc r c. f J ED iJill �t @ I la 'WIMMY, 1; Nis Q.a� p # �a� fig �r ��ii y Y �b -31 �� azss 9 # i o � . r�p. �SgBa Ilk .11 jif INA is till! � u USE ERfl 1 1 CONTRIBUTING AGENCIES AND ORGANIZATIONS State of Callforaia Local Humboldt Stau University Redwood Chapter Audubon Conte Environmental Resource Engineering Arcatallortho ecift Environmental Center Fisheries Arcata Recycling Center Nerthceaat waurfowlere Humboldt State University Foundation Redwood Cemmitnitr Ammon MM7 wildlife Bur Smote ofAmerica _ ' Coastal Can ^u Humboldt RRldlife Care Gaut Department of Fish and Game Coastal Commission City of Arcata State Water Resources Control Board Public Watt Department Conservation Caps Arcata Marsh and Wildlife Sanctrcary Office of Appeopnat@ Technology Task Force ' Food and Agriculture Parke and Recreation Departrrrsnt Health Services Community Development Department Federal.Agencies Design Asaehace Committ e Environmental Pr~ on Agency Fish and wlldLife Service ' Sea Grant 730 F St.,Arcata.Gilformia MZi (707)E!?-Ml i i i 1 CALIFORNIA aeron t r t e 1 SPRING 1985 VOL. 1 NO. 2 _. 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'�_ �.1; OTYPICAL N A Saturday morning in the city of Ar- Editor's Note: in the first issue of C.'nli- cata. from fifteen to twenty-five people gather for former trerletfrontAge. Ave smv how an Audubon Society tour of one of the town's major Long;Beach resolved its shoreline plan- outdoor attractions—the Arcata Marsh and Wildlifening issues. Small cities in viral areasalso piai-a vital role on the coast. This ' t Sanctuary, a seventy-five acre expanse of marsh, lake, article shows how one such city trans- and upland on the shores of Humboldt Bay. Stopping at formed its waterfront. •� well-placed observation points. the group watches the ' freshNyater marshes unfold a rich variety of birds and other wildlife.The tour guide explains how unusual the sanctuary is; almost ninety percent of Humboldt Bay's ' wetlands have been destroyed by filling, diking, dredg- ing. and other human activities. As the morning wears on, the sanctuary brings other visitors who mar barciv notice the birds. Some come to bicycle, jog, or hike, others to fish for trout, still others to relax and contemplate the quiet beauty of the stir- ' roundings. It is hard to believe that this refuge was not always a natural delight: until recently, the sanctuary W.aS a garbage dump, and if not for an unusual comer- ' gence of diverse interests. it would have remained a place to be avoided. not cherished. Located on Arcata's southern waterfront, one and a t half miles from the center of town, the sanctuary was ' originally part of an extensive salt marsh system. On the arrival of white settlers, the site—along with much of Humboldt Bay's shoreline—was progressively drained and (liked for agricultural and industrial use. In the early 1960s, Humboldt County residents began using it .� as a sanitary landfill., a polite euphemism for what a former city official described as a "blighted, miserable, open dump." By the late 1970s, the city had embarked on a project to transform the landfill into a more productive water- front. First conceived as a sewage treatment facility, the project ct evolved into an extraordinarily successful com- ' hination of public works, natural resource restoration, �( -•11a:= 7 = 1 and recreational access.Todav it is hailed by an unlikely .'��• • 1 �.�r r,.: •!� assortment of interests: cite engineers, coastal protec- tion agencies• water quality regulators• university pro � 5'"f� ��'-;; ' fc•ssors, local politicians, environmentalists. sportsmen. husinc•ssmcn, and tourists. Most planners only dream of this kind of consc•nsuS. �(i ,i:,ti,�•� ' The consensus came about hccause the proponents of _ the project paid attention to the real needs and desires �ti JJ r 1A •- ' v of* the citv'S inhabitants. The Arcata experience shows that consenation. public works. and recreation are not y only Compatible hilt often mutually hcnclicial: all call 1 . 1 . r be woven into a waterfront restoration project that serves a diverse population and makes economic sense. ' LOCATED SEVEN seven miles from the city of Eure- ka, Arcata is a stable town of 14,600 residents. Ca- tering primarily to the logging industry and Humboldt State University, the town's economy is service orient- ed.With its large student population.Arcata has a young r and creative flair which, in combination with a progres- sive city government, encourages imaginative solutions to common problems. r In the late 1970s, the site of the sanctuary consisted of twenty-six acres in private ownership, containing marginal grazing land and abandoned lumber mill de- bris. and forty-nine acres of city property, containing I the landfill and a remnant salt marsh. New water quality regulations had forced the closing of the landfill be- cause of its potential for polluting Humboldt Bay. A r covering of clay transformed the site from a "miserable open dump" to a large mound of dredge spoils. Dubbed ICRESCENT CITY t "Mount Trashmore" by the locals, the site remained an ' 1 eyesore. Faced with this nuisance,the city came up with sever- _ ' ( al proposals. Some of the first ideas included a marina, a rLittle League baseball park, a golf course, and a motor- cycle racing track. In the meantime, however, certain 14UM60L0.couN.. regulatorychanges were brewing which would eventu- r ally lead the city to discard all of these proposals. New state regulations imposed restrictions on the re- lease of treated sewage effluent into enclosed bays and r estuaries. To comply with these regulations, the Hum- 299 boldt Bay Wastewater Authority proposed a regional treatment system that would eliminate Arcata's treat- y ARCATA ment plant and transfer effluent discharge from the bay EUREKA to the ocean. This idea did not sit well with the city and j its public works staff, who argued that the regional system Would raise the city's costs without bringing any i environmental benefits. Under the guidance of its direc- tor. Frank Klopp, the public works staff searched for an alternative,and out of their imaginative efforts came the r idea of a restored marsh. t 'raking advantage of a provision that Nvould allow the city to continue releasing effluent into Humboldt t BaN, if that could be shown to enhance the resources 1 - �_ of the hay, the staff' proposed a plan for biological MENDOCMO treatment of the city's wastewater using a system of COUNTY freshwater marshes. They consulted Dr. George Allen r r rd . •� '� ,a7« , .-.. - '_• �.....�'•. _ _ • . way- ..... .cs�' '���_\ti•ram Y.Y-':._�� "��';. •P'• W. Uir 1 � ` Before restoncion ' ! and Dr. Robert Gearheart from Humboldt State Univer- sity. authorities in the fields of aquaculture, wildlife, and wastewater. Pooling their talents, the group de- signed a marsh treatment system that would result in high quality effluent and would grove fish and attract birds to boot. They decided to place the new marsh ' system at the old landfill site, directly north of the city's existing; sewage treatment plant and oxidation pond. Naming;this concept "The City of Arcata's Integrated r Wastewater Treatment Reclamation and Salmon Ranch- ing Project," the city sought state approval to continue treating wastewater locally and discharging into Hum- boldt Bay. The city argued that, in addition to producing high quality effluent, the freshwater marshes—nourished and irrigated by wastewater— would provide productive bird and wildlife habitat on the shores of the bay. WHILE THESE plans were being developed. the State Coastal Conservancy was launching its coastal resource enhancement program. designed to promote the preservation and enhancement of wetlands and other natural resources along the coast. \X'hen it learned of this possible source of funding. the cin•asked the Conservancy for assistance. Since it is not the busi- ness of the Conservancy to fund sewage treatment facili- ties. the agency told the city that only a plan which r • t i • �—�'-'.�.11N.«��i-w"�.•.i/r'.[W-SL"�. �.J.ti�A.'Oi/.r..i LY'Y -.v .M+�eJY t- - -_...3 fir:_ ��-1 ' �.:�. ,-r.�:•.� �. _,'. i • _— —_— � i •....-L-` -, yr—=� _ �_�y'__i��.�_• :� t� —S.r^—� —� L• •�� •• :• •— .-. emphasized the creation of wetland habitat or the provi- sion of recreational access would be considered for Conservancy funding. However, the Conservancy was not opposed to using wastewater for marsh irrigation if that could be shown to work. Looking for a pilot project l for its enhancement program, the Conservancy offered to help the city with planning and funding if wildlife and recreational benefits, as opposed to wastewater treatment, became the primary focus of the project. Encouraged by the Conservancy's interest (and, alas, money), the city decided to develop the project for its resource and recreational values. The city was aware of the benefits such a project would offer. Freshwater wet- land habitat was essential for thousands of migratory birds traveling the Pacific Flyway and had been severely reduced in this area. Residents of Arcata and tourists ' visiting the north coast needed conveniently located >? recreational opportunities. Students and staff at the uni- ;i, vcrsity, where the natural sciences are a prime focus, could use the area for study and research. Much of the i existing site was an evcsorc and needed major restora- tion. lull cooperation could be expected from coastal ' planning and resource management agencies. And last 3 but not least. sometime in the future the project might 1 , = 1 still fit into the sewage treatcmcnt plans of the public ' works department. With all this in mind, the Arcata Wastewater Treatment Reclamation and Salmon Ranch- ing Project was put on the back burner and the Arcata ' Marsh and Wildlife Sanctuan• was born. From this point on, the Conservancy and the city worked together to sec the project to fruition. With an initial grant of' S35.000 from the Conservancy, the city hired consultants to prepare a feasibility study, which formed the basis of an enhancement plan. During this ' time, the cityand the Conservancy maintained close tics ' with all interested state and local agencies. They set up a task force, held public hearings, and enlisted the help of nonprofit organizations and countless volunteers. Humboldt State staff provided technical expertise. The I project had the strong support and assistance of many city officials, including the mayor (now District As- ' scmhlyman), Dan Hauser. The Conservancy approved a second grant of S" 2,000 to purchase the three parcels in private owner- ship. needed because of the sire of the project. A third grant of $235,000 was authorized for project imple- mentation. Much of the work was performed by crews ' from the city and the California Conservation Corps, 1 -� 1 : 1 ' - thereby lowering construction costs substantially. Finally. in June 1981, the Conservancy granted S 19.550 to install trails, picnic tables, benches, bird- watching areas, fences, signs, and other visitor-serving 1 facilities. Many volunteers helped with this phase of the project, building bird blinds, spreading sawdust for trails. and replanting vegetation. RE-QUIRING ONLY only two and a half years from feasibility study to completion. the project was for- mally dedicated as the Arcata Marsh Wildlife Sanctuary on July 4, 1981. As finally constructed, the sanctuary contains three freshwater marshes totalling thirty-one " acres and a twenty-two-acre recreational lake. The for- mer landfill--now covered with grasses, shrubs, and small trees—contains trails, bird-watching areas, benches, and a small remnant salt marsh. Trails to bank w fishing sites rim the lake. Small islands in the marshes and lake provide protected resting areas for birds. Cars can enter the sanctuary and park on the shores of the bay 1 at the only shoreline access point in the city of Arcata. Attractive interpretive signs have been placed in the sanctuary explaining the ecology and animal life of the area. A degraded waterfront site has been restored to a scenic area offering aide vistas, solitude, and a much -= needed place for town dwellers to enjoy the bay. Current use figures confirm the project's success.The city estimates that the sanctuary receives approximately 93,000 visitors a year. The freshwater marshes draw numerous students and professors from Humboldt State for research projects. Over 160 species of birds fre- quent the site. Although aquaculture is not currently being pursued, the sanctuary's lake is stocked with steelhead and rainbow trout. And what about the Arcata Integrated Wastewater Treatment Reclamation and Salmon Ranching Project? It is alive and well, at least in modified form.Although the a sanctuary has not vet been used for actual wastewater treatment, the public works staff has proven through a pilot marsh study that the resources of Humboldt Bay will be enhanced if secondary effluent is run through the marshes hefore it is released into the bay. Thus, the citA- has obtained approval to use treated effluent to j irrigate the marshes. The city will save substantial sums Vof money by continuing; to treat its wastewater locally and to use the bay for discharge. The city has since dc%,eloped other wetland projects 1 at degraded waterfront areas. The Conservancy has as- sisted with two of these: the opening of a seventeen- acre diked salt marsh to tidal circulation,and the rerout- ing of a channelized slough to a more natural course. Both projects are adjacent to the sanctuary and will ' provide recreational access.Eventually,the city plans to link all trails within the sanctuary and other wetland projects in a network that will connect with the Red- wood Coastal Trail. These experiences demonstrate that a wetlands proj ct can successfully restore a degraded waterfront area 1 And provide substantial benefits beyond increased wild- fife habitat. As important as our natural resources are, lthe huge investment of money and effort necessary to enhance these resources will be easier to accomplish if 1_ ' multiple benefits occur. Th_e_Arcata project makes clear__ that increased recreational and educational opportuni- ties_ public-.works uses, aesthetic improvements. and ` wildlife benefits can all work to reinforce each other if 1 project,des.igners_are_creative and accommodating. In a world of environmental horror stories, the Arcata experience is a home-grown success. Beyond its value as a planning model, perhaps its major contribution is the validation of a larger truth: Not only are human beings very capable of making things wrong, they are also, when motivated, marvelously adept at making them right. ❑ i Carol Arnold is a project analyst in the Conservancy's coastal resource enhancement program. ' r- r - r ,/2 NOTICE� _QF PUBLIC HEARINQ ZONE CHANGE NO. 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach City Council will hold a public hearing in the Council Chamber at the Huntington Beach Civic Center , 2000 Main Street , Huntington Beach, California, on the date and at the time indicated below to receive and consider the statements of all ' persons who wish to be heard relative to the application described below. DATE/TIME : Monday, February 5 , 7.: 00 PM APPLICATION NUMBER: Zone Change No . 8,8-18 APPLICANT: City of Huntington Beach LOCATION: The Non-Certified Coastal Area of tine City of Huntington Beach generally located on the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River (see attached map) `. REOUEST: A public hearing to rezone the 232 acres non-certified coastal area as follows :, Change the zoning on a 7 . 0 acre parcel to Visitor Serving Commercial and rezone the remaining 225 acres by affixing a Coastal Conservation Overlay to the existing zoning on the subject property. For further information regarding the specifics of this zone change application, please contact the City Department of Community Development . ENVIRONMENTAL STATUS : Categorically exempt pursuant to Section 15255 of the California Environmental Quality Act . COASTAL STATUS : This project is in the Coastal Zone . This zone change must be reviewed and approved by the California Coastal Commission . ON FILE : A copy of the proposed request is on file in the Citv Clerk' s Office and the Community Development Department , 2000 Main Street , Huntington Beach, California 92648 , for inspection by the public . A copy of the staff report will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after February 2 , 1990 . ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above . If there are any further questions please call Scott Hess , Senior Planner , or Ruth Lambert , Assistant Planner, at 536-5271 . Connie Brockway City Clerk CITY OF HUNTINGTON BEACH Dated: .2/23/90 Q - - Sya y C � y 1 \ J Ty y of� \\`\� ' 1:' • '(' t` r. \j `,- '�' 10 ', , :J� •O �T D D7 I: 6uV eet Area VISITOR SERVING COMMERCIAL -----f!AMILTCN EXTENSION EXHIBIT A 1 ; CONSERVAT 1011 NONCERTIFIED Aw ItIDUSRTIAL ENERGY PRODUCTION COASTAL AREAS fiI,NIWGION Bf.KN C4IFORNVI ` ��p , �� END PLtNM7�fG OEPARTMEM IND. ENERGY ►f PRODd CONSERVATION Z NJE C ay��' WHITE HOLE LABELS 1/24/90 (4160d) AMIGOS DE BOLSA CHICA GARY GORMAN MICHAEL MARTIN P.O. Box 1563 9122 Christine Drive So. Cal. Edison Co. Huntington Beach, CA 92647 Huntington Beach, CA 92646 ! 7333 Bolsa Avenue A-nt: Lorraine Faber Westminster, CA 92683 ASSEMBLYMAN FRIZZELLE DEPT. OF FISH & GAME CARL NELSON, DIRECTOR 17195 Newhope St. Ste. 201 1416 9th St. 12th Floor Env. Mgmt. Agency-P.W. Fountain Valley, CA 92708 Sacramento, CA 95814 400 Civic Center Dr. W. Attn: Jim Orr Attn: Bob Radovich P.O. Box 4048 Santa Ana, CA 92702-4048 SENATOR BERGESON COASTAL CONSERVANCY F. WILLIAM OLSON, MNGR 140 Newport Center Dr. 1330 Broadway, Suite 1100 Analysis Sec/Env Mgnt Agency Suite 120 Oakland, CA 94612 12 Civic Center Plaza Newport Beach, CA 92660 Attn: Reed Holderman/ P.O. Box 4048 Attn: Julie Froberg Wendy Eliot Santa Ana, CA 92702-4048 CAL COASTAL COMMISSION CALTRANS/DISTRICT 7 U.S. FISH & WILDLIFE SVC. South Coast Area 120 S. Spring Street Div. of Ecological Service 245 West Broadway, Ste. 380 Los Angeles, CA 90012-3606 2400 Avila Road Long Beach, CA 90802 Attn: Bob Dixon Laguna Niguel, CA 2677 Attnn: John Leslie Attn: Jack Fancher DEPT. OF THE ARMY CAL. DEPT. OF FISH & GAME RUTH GALLANTER L.A. Dist, Corp. of Engr. Region 5 P.O. Box 66494 P.O. Box 2711 245 W. Broadway, Ste. 350 Los Angeles, CA 90066 Los Angeles, CA 90053-2325 Long Beach, CA 90802 Attn: Cheryl Hill Attn: Fred Worthy, Jr. DAISY PICCIRELLI CALTRANS/DISTRICT 7 CALTRANS/DISTRICT 7 P.O. Box 6202 P.O. Box 2304 P.O. Box 2304 Mesa, Arizona 85206 Terminal Annex Terminal Annex Los Angeles, CA 90051 Los Angeles, CA 90051 Attn: Ron Kozinski Attn: Ron Herdman MARY F. PORCARO ASCON PROPERTIES CABRILLO MOBILEHOME 8135 Foxhall Drive 21602 Surveyor Circle HOMEOWNERS ASSN. Huntington Beach, CA 92646 Huntington Beach, CA 92646 21752 Pacific Coast Hwy. �2 Huntington Beach, CA 92648 Attn: Ron Yocrem WILLIAM L. ADAMS "Q ROBERT VAN ZANDT ROBERT MELLO 20772 Mission Lane IS 12 Ben Lomond Drive 21276 Chesterbrook Drive Huntington Beach, CA 92646 Glendale, CA 91202 Huntington Beach, CA 92646 148-027-1*- �� 148-027-30 148-27-49 fie. C� MICHAEL BURKE �oo PATRICIA YAMAZAKI MELVIN FREITAS Q6 8142 Pawtucket Drive J 8111 Ridgefield Drive 042 Niguel Circle -7ov-`Z/ Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-24 148-027-31 149-041-04 -ST 'LEY HETRICK BYRON TARNUTZER RRY SHAW ` 1562 Quail Run �, 4 Upper Newport Plaza, Ste. 201 7untington 91 Antiqua Lane Santa Ana, CA 92705 Newport Beach, CA 92660 Beach, CA 92646 148-027-58 148-121-03 148-081-13 148-027-33 149-023-07 148-027-35 KEITH CAMPBELL KENNETH A. LEE SCOTT HOOPER/ 8121 Ridgefield J 1109 N. Evonda Street `CARMELA TUERIMA Huntington Beach, CA 92646 Santa Ana, CA 92703 8131 Ridgefield Drive Huntington Beach, CA 92646 148-121-01 148-027-43 1149-041-31 BERNARD KAPLAN ✓ DARLENE GIACONE /ODIE POWELL j P.O. Box 5278 8126 Ridgefield Drive v 9021 Rhodesia Drive Huntington Beach, CA 92615 Huntington Beach, CA 92646 Huntington Beach, CA 92615 148-027-52 148-027-46 149-041-21 ROBERT UJIHARA t/ ROBERT B. MELLO )", ARCI KLAUSER 2901 Rebano 15690 Poppy Way 062 Adelia Circle San Clemente, CA 92672 Westminster, CA 92683 Huntington Beach, CA 92646 148-081-11 148-081-12 149-014-02 ROGER GASTEIGER ✓KEITH BELEW GERALD GARTLAND 21421 Antiqua Lane 21401 Antiqua Lane 21832 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-24 149-014-01 148-027-55 KAUSHAL SHARMA J ROBERT McCARGAR TROY LOTHRONGER 22381 Harwich Lane 21822 Kiowa Lane 20311 Brentstone Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 OWNER/OCCUPANT 148-027-35 4,3'Q Z ,v& QCta- +�e°/4c"-, 148-081-06 8135 Foxhall Drive J OWNER/OCCUPANT JJAMES NIEMANN Huntington Beach, CA 92646 8131 Ridgefield 8522 Sandy Hook .Dr. Huntington Beach, CA 92646 Huntington Beach, CA 92646 �150:j&l 148-027-56 148-081-07s'l� RTIES ✓ RALPH GUMBERG ✓WAYNE LEWIS 8 675 Irvine Avenue 8112 Foxhall Drive 8522 Sandy Hook Drive Costa Mesa, CA 92626 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-57 148-081-08 114-150-50 J DON DICKERSON LAWRENCE AYERS ( 8LWMPU�B�LIC \ 8116 Foxhall Drive 8502 Sandy Hook Drive RKS �. Huntington Beach, CA 92646 Huntington Beach, CA 92646 ��21643 Pacific Coast Hwy. �1 Huntington Beach, CA 92648 148-027-58 148-081-09 Planning Commissioner STANLEY HETRICK V GAY BOYER Victor Leipzig J 1722 E. Arbutus Avenue _ 21441 Antigua City of Huntington Beach Anaheim, CA 92805 Huntington Beach, CA 92646 2000 Main Street u �5 k' , Huntington Beach, CA 92648 . i fzu. a C?LL 05 _ fan/ 14$ 027-59 148-081-10 6114-150-75, 7b & 77 DAVID TUCKER 'JOHN HILL ASCON PROPERTIES 8126 Foxhall Drive J21431 Antigua Lane 21572 Surveyor Circle v Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 14LO27-60 148-121-03 a"1 T1148-021-25 0-0" Mes 4 GEOFFREY HARTSTALL BYRON TARNUTZER N IHUNTINGTON BREAKERS 8132 Foxhall Drive ''6 -ox�6 ��� P.O. Box 22630 Huntington Beach, CA 92646 Costa Mesa, CA 92627 �,i Long Beach, CA 90801 �p 148-027-61 148-121-04 148-027-51 JEFF REARDON CITY OF HUNT. BC °' ,,,EDWARD HARTLINE J 8136 Foxhall Drive \h641 Edison Avenue 8135 Foxhall Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-62 148-027-52 148-027-63 RICHARD BARNES ROBERT UJIHASRA JERROLD DUNLAP 8142 Foxhall Drive 2901 Rebano '8146 Foxhall Drive Huntington Beach, CA 92626 San Clemente, CA 92672 Huntington Beach, CA 92646 149-041-17 148-027-53 149-041-30 J JOSEPH JOHNSON RUSSELL BERGAVID ARCHIBALD 9002 Adelia Circle 8125 Foxhall Drive 1031 Rhodesia Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 J148-027-54 149-023-08 HARRY WEBER JR. Robert London Moore, Jr. WILLIAM WELLS 8121 Foxhall Drive MILLS LAND & WATER CO. 21911 Kiowa Lane Huntington Beach, CA 92646 P.O. Box 7108 Huntington Beach, CA 92646 Huntington Beach, CA 92615 149-371-14 149-371-25 149-023-09 NAGASH SHETTY LARRY WRIGHT PAUL HOWARD 9332 Gatehead Drive 22391 Harwich Lane il931 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371--15 149-371-26 149-023-10 GERALD ANDERSON DALE HOLMSEN FARES JAHSHAN 9342 Gatehead "P.O. Box 606 _ 1941 Kiowa Lane Huntington Beach, CA 92646 Cedar Glen, CA 92321 Huntington Beach, CA 92646 149-371--16 149-371-27 149-023-11 ARTEMIO R. RAMIL STEVEN PETERS N MCKINNEY 22301 Harwich Lane / 22411 Harwich Lane 11961 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-17 149-371-28 �49-023-12 JAMES BRADY MINOO MALEK ULIUS PALDI 22331 Harwich Lane 22421 Harwich Lane 21832 Windsong Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 ; Huntington Beach, CA 92646 il. Hl RRY ANDERSON CARL BARRERA LAWRENCE MALLON 8136 Pawtu ket 240 Old Army Road P041 Adelia Circle Huntington each, CA 92646 4carsdale, NY 10583 Huntington Beach, CA 92646 148-027-25 148-027-32 149-041-13 ti ROBERT MARLOW BROWN OCCUPANT FRED I. GRIMES �h 9061 Rhodesia Drive �9021 Rhodesia Drive 202-B 21st Street Huntington Beach, CA 92646 Huntington Beach, CA 92646 Newport Beach, CA 149-041-28 149-041-31 149-041-31 - WOOLSEY, ANGELO & MILLS LAND AND WATER MR. LARRY SITTON THATCHER 18090 Beach Blvd., Ste Six Calif. Dept. of Fish & Game 2099 San Joaquin Hills Road Huntington Beach, CA 92648 330 Goldenshore, Ste 50 Newport Beach, CA 92660 Attn: Robert London Moore, Jr. Long Beach, CA 90802 Attn: Roy Woolsey Attn: Wildlife Management STEVE BONE MARK SHAPIRO Robert Mayer Corporation 21322 Ashburton Cir. 660 Newport Center Drive #105 Huntington Beach, CA 92646 Newport Beach, CA 92658 PAUL D'ALESSANDRO TRUDY OBRIKAT DON TROY Deputy City Attorney 21871 Newland#131 5272 Allstone Drive City of Huntington Beach Huntington Beach, CA 92646 Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 Katherine Stone/Margaret Sohagi KENT M. PIERCE HERB NAKASONE, MGR. Freilich, Stone, Leitner, Carlisle HB/FV Board of Realtors Flood Programs Division The Wilshire Landmark, Ste 1230 19900 Beach Blvd., Ste. I Env. Mgnt. Agency/Flood Ctrl. 11755 Wilshire Blvd. Huntington Beach, CA 92648 P.O. Box 4048 Los Angeles, CA 90025-1518 Santa Ana, CA 92701 Robert Mandic/Gary Gorman Title Energy of California Paul Gonzales, Chief Branch"C" HB Wetlands Conservancy 10537 Santa Monica Blvd. Env. Ping. D.O.T., Dist 12 P.O. Box 5903 3rd Floor 2501 Pullman Street Huntington Beach, CA 92615 Los Angeles, CA 90025 Santa Ana, CA 92705 Attn: Bill Curtis JOHN TOYAMA CHARLES GRANT/TAFFY EVERTS VIRGINIA WARRINGTON Space 288 Friends of the HB Wetlands ;122011 Hula Circle 21851 Newland Street 21902 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92647 Huntington Beach, CA 92646 114-481-14 CHARLES PRIDDY LARRY HARTSUIKER TERRY HARMON J 21872 Kiowa Lane V9062 Christine Drive c/o Lucille Harmon Huntington Beach, CA 92646 Huntington Beach, CA 92646 9582 Hamilton Avenue #343 149-022-02 114-481-25 Huntington Beach, CA 92646 149-371-23 JOSEPH WHEELOCK RAYMOND COLE ASCON PROPERTIES 9232 Christine Drive /22061 Susan Lane \1675 Irvine Avenue#2-B6 Huntington Beach, CA 92646 Huntington Beach, CA 92646 Costa Mesa, CA 92626 224-495-05 114-481-05 114-150-11 I 1114-481-20 114-495-01 114-481-11 DOkBRUNK 1/ JUANITA WEIR KATHLEEN MOONEY '9012 Christine Lane 8041 Newman Avenue 22101 Jonesport Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-21 114-495-02 114-481-12 KOUROSH KHAVARI JAMES IBBOTSON ✓ MICHAEL HUNTER L/ 9022 Christing Drive 9262 Christing Drive 22012 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-22 ✓ 114-495-03 114-481-13 WILLIAM KELLER GUENTER STEVER ✓ MARCEL LOURTIE 9032 Christine Drive 9252 Christine Drive 22001 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 .- ..rj�6')-Ac? 114-481-23 114-495-04 414-481-14 WILLIAM BURKE J ALBERT NADOW ✓ FRANK SZEKULA 9042 Christine Drive P.O. Box 8747 22011 Hula Circle Huntington Beach, CA 92646 Anaheim, CA 92802 Huntington Beach, CA 92646 114-481-24 114-495-05-- / Sa4' -SP 114-481-15 J PHILIP BEUKEMA CDENISE LYNCH ���V�e THOMAS LENIHAN 9052 Christine Drive 9232-Christine Drive 22021 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-25 114-495-06 114-481 14 [ (0 ✓ HARVEY HENDERSON ROBERT SIMPSON JOHN R / 9062 Christine Drive ✓ 9222 Christine Drive 9591 Onset Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-26 114-495-07 114-495-08 KARL WYSOCKI LUCILLE BAGNOLI HERBERT AHN J 9072 Christine Drive 9562 Hightide Drive ✓9202 Christine Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-495-09 114-495-10 114-495-11 FAROUK SHAMOO FRED GALLUCCIO ✓ JACK BUFFA J 9192 Christine Drive 9182 Christine Drive 9172 Christine Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-495-12 114-495-13 114-495-14 MARSHALL PAPKE EDWARD DREWS ✓ GREG BRENNER 9162 Christine Drive 9152 Christine Drive 9142 Christine Dirve u Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-495-15 �/ 114-495-16 IVY DANE-MINS WAYNE MURRY GARY GORMAN Taiyo Investment 9130 Christine Drive ✓ 9122 Christine Drive ✓ 19750 S. Vermont Avenue #145 Huntington Beach, CA 92646 Huntington Beach, CA 92646 Torrance, CA 90502 1 9'-371-18 i 149-371-29 149-024-01 JAMES BRINK HARVEY RUDY JOHN ACAMPORA 22321 Harwich Lane P.O. Box 26134 -L/21932 Kiowa Lane Huntington Beach, CA 92646 . Santa Ana, CA 92799 Huntington Beach, CA 92646 149-371-19 4-481-01 149-024-02 YING WILSON /BETTY HYATT RICHARD FINLEY 22331 Harwich Lane V 22001 Susan Lane �/21912 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-20 114-481-02 149-024-03 ROBERT BELANGER HARRY HOWELL ✓ CHAR.LES GANT 22341 Harwich Lane 1815 Toyon Lane ✓21902 Kiowa Lane Huntington Beach, CA 92646 Newport Beach, CA 92660 Huntington Beach, CA 92646 149-371-21 114-481-03 J 1,49=371-12 WILLIAM MALKIN CHARLE�VER LLEN GRAENEZ 22351 Harwich Lane 22031 Susan Lane 9341 Gateshead Drive Huntington Beach, CA 92646 Newport-Beach,-CA-9Z66U— -// Huntington Beach, CA 92646 149-371-22 114-481-04 149-371-13 RON WILES CAROL CAGLE ✓ FRANK CHENELIA 22361 Harwich Lane 21572 Oakbrook 9331 Gateshead Huntington Beach, CA 92646 Mission Viejo, CA 92692 Huntington Beach, CA 92646 149-371-23 1, 114-481-05 149-041-31 TERRY HARMON OND COLS /ODIE POWELL 952 Hamilton Avenue #343 2 6 san Lane 9021 Rhodesia Drive Huntington Beach, CA 92646 in ton Beach, CA 92646 Huntington Beach, CA 92646 J149-012-01 149-022-01 149-041-320 Vweek RICHARD DAFFORN J GUY MARTIN RICHARD NIPWELL 21802 Kiowa Lane 21882 Kiowa Lane 9001 Rhodesia Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-012-02 149-022-02 1a, ��r� 149-041-33 J ALVA BATTENFIELD CHARLES PRIDDY (g co ,� JOHN EARLEY 21792 Kiowa Lane ( 2971 Brookstone Way U;-Y 9002 Rhodesia Drive Huntington Beach, CA 92646 Sacramento, CA 96833 Huntington Beach, CA 92646 149-012-03 49-022-03 149-041-34 DONALD ZALESKI AVID NELSON ✓� GRIME SS GRS J21772 Kiowa Lane 21862 Kiowa Lane 202 21st Street #B Huntington Beach, CA 92646 Huntington Beach, CA 92646 Newport Beach, CA 92663 149-013-01 149-023-01 �49-041-35 RINO RUBERTI JLEE BRANKOV i/JOHN MONTOYA 21771 Kiowa Lane 21841 Kiowa Lane 9032 Rhodesia Drive Huntington Beach, CA 92649 Huntington Beach, CA 92646 Huntington Beach, CA 92646 �14.9-1,M-02 149-023-02 149-041-36 H11.DE GRANTHAM VINTON MARRIOTT GEORGE HUTTON-POTTS 21781 Kiowa Lane ✓ 21851 Kiowa Lane J9042 Rhodesia Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 ✓Huntington Beach, CA 92646 149-013-03 149-023-03 149-011-01 LOUIS KASTORFF f ISOLDE WITTMAN YICTOR ZIEGLER 21801 Kiowa Lane 121861 Kiowa. Lane V9001 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-04 149-023-04 149-011-02 RHODA ENGLERT IRICHARD SVOBODA �UY ADAMS 21911 Kiowa Lane 21871 Kiowa Lane 021 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-05 149-023-05 149-011-03 DON HOLMES 11D� ANIEL MALLOY JRONALD JETT 21821 Kiowa Lane \081 Kiowa Lane 9031 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-06 149-023-06 P49-011-04 CHARLES CARTER ✓ JAMES SIMPSON A. ASHURST 21831 Kiowa Lane 21891 Kiowa Lane 9051 Bermuda Drive Iuntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-021-01 149-023-07 �L`L�e� 114-481-06 ARTHUR ASHLEY ✓ OWNER/OCCUPANT CHRISTOPHER VALSAMAKIS 21842 Kiowa Lane 21901 Kiowa Lane =-22081 Susan Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 k` 114-481-17 114-481-27 ��(11 �( ` 114481-07 STEVEN HURLBUT J OCCUPANT ��' ` PE i, RLY REASON 22051 Hula Circle 9392 Waterfront Drive J `22091 Susan Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-18 114-481-28 114-481-08 KENNETH KIMBALL J ELMORE LORANGER ROBERT WHITE 22071 Hula Circle 9092 Christine Drive ,,�2072 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-19 114-481-29 114-481-09 FRANKLIN GOODENOUGH ALIREZA VAZIRI J /'RAYMOND JONES 9002 Christine Circle 66 Balboa Coves 22052 Hula Circle Huntington Beach, CA 92646 Newport Beach, CA 92663 Huntington Beach, CA 92646 114-481-20 J 114-481-30 114-481-10 DON BRUNK MARION GOLFOS ✓ GERALD RILEY 9012 Christine Drive 22161 Wood Island Lane 22042 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 1. i c • a•\ .•. ..r'>R-:.:.c wvr.y::. Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 ' Huntington Beach,CA 92648 ' •• I~ 114-481-03 �0 CHARLES HAVER 22031:Susan-tane--- � �y " Newport Beach, CA ,92 ° P /{� el Six °fA J ( FIRST CLASS MAIL „UNTINGTON KACH Legal Notice City of Huntington Beach _ Office of the City Clerk P. O. Box 190 ' f'n yl -5� ::.:ii P sl Huntington Beach, CA 92648 114-150-50 ' 114-150-62 °r CALIF. PU IC WORKS 21643 Pac is Coast Hwy. Hunting n Beach, CA 92648 I` FIRST CLASS MAIL MPAINGTON UX" Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 9 :t L Huntington Beach,CA 92648 IF�C.J � +s?,;�:J,: 19.i;; �. � Cap iE.� ....: � --• ASCON PROPERTIES �! 2675 Irvine Avenue#2-B6 i Costa Mesa, CA 92626 114-150-11 �a FIRST r� a ee RA A 11 Legal Notice �..�..<.....,..,r. _-�....,-..� -.�9.�. is . City of Huntington Beach Office of the City Clerk 14 P. O. Box 190 rah-,,• Huntington Beach, CA 92648 � S° ((11 q , 114-481— HAR NDERs0.1 a�_a' 9062 hris ne Di r PJ H tingto each 646 J. FIRST CLASS MAIL „►, ,��,:_ „�,��„�„1,,,11,,,,11,1„ii,,,11 HUNT,NGTON BEACH Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach, CA 92648 17 -1G •!A rat♦ r� err` • .-� IvItilt I F. U11. ICV - 8135 Foxhall Drive Huntington:Beach, CA 92846 / y\ FIRST CLASS MAIL 11,1,,,,1,1,1i,=,1„I,I1,,fill I,,,1 III III!III did HUNnNGTON BEACH Legal Notice .-.. _..... ... ..... ..,-.�.T ,\. City of Huntington Beach `�'�''�s-F'c`;' �" \' Office of the City Clerk a it "a; OFA!,6 2 91 S� �.=c i P. O. Box 190 -P o {' r`�*' 'a �•\ Huntington Beach,CA 92648 � ` "" r;�_ E //////•������_ , . �9 _ 144-481�1 � �10,fl-j ID BETTY TT � p p 22001 s Lane `; Hu gton%each, 2 46 • FIRST CLASS MAIL •UWWGTON BEACH JC a. Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach, CA 92648 James K. Hetrick 1562 Quail Run Santa Ana, 'CA 92705 J. FIRST CLASS MAIL RECEIVED CITY CLERK ® C'TY OF HU-'J1KGT',. . -:CH.CALIF. Southern California Edison CompanyF 7333 BOLSA AVENUE 1 �� I u ' �'� �1� CJO WESTMINSTER.CALIFORNIA 92683 M. D. MARTIN February16 1990 TELEPHONE MANAGER.HUNTINGTON BEACH I714)895-0255 Honorable Tom Mays Mayor, City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Subject: Zone Change 88-18 Southern California Edison Co. Property Dear Mayor Mays: At the Pacific Coast Highway Coalition meeting of February 15, 1990, a discussion was held as to the benefit of having a "CZ" suffix rather than a "CC" suffix added to the zoning for all Southern California Edison Company properties involved with Zone Change No. 88-18. It was noted that this change will not alter the City' s overall zone change intent. We concur that having the "CZ" suffix added to our existing zoning for all properties would be in our best interest and respectfully request your consideration of the change. City staff has informed me that they will be recommending this change in their staff report to you on February 20, 1990. Thank you for your consideration in this matter and if you have any questions, please do not hesitate to call me. Sincerely, MDM:cv cc: City Council Members M. C. Adams C. Brockway G /4e y _ _ huntington beach department of community .development s�-Af f _- REPORT TO: Planning Commission FROM: Community Development DATE: December 5, 1989 SUBJECT: ZONE CHANGE NO. 88-18 (REFERRED FROM CITY COUNCIL) APPLICANT: City of Huntington Beach REQUEST: Change of zoning on various parcels to achieve consistency with Land Use Plan. LOCATION: Inland side of Pacific Coast Highway between Beach Boulevard and Pacific Coast Highway ACREAGE: Approximately 232 acres 1 . 0 SUGGESTED ACTION: Approve Zone Change No . 88-18 as modified with findings and forward to City Council for adoption. 2 . 0 GENERAL INFORMATION: Zone Change No . 88-18 is a request to to apply appropriate zoning designations to the properties in the coastal zone in order to achieve consistency with the Land Use designations and to complete I certification of the Local Coastal Program. On June 2 , 1986 , the City Council adopted a Land Use Plan for the non-certified coastal zone area along Pacific Coast Highway, between Beach Boulevard and the Santa Ana River . On April 13 , 1987 the California Coastal Commission certified the Land Use Plan as j submitted by the City. The Land Use Plan, as certified, designates I i� approximately 7 . 0 acres as Visitor Serving Commercial , 125 acres as 1 Conservation, 83 acres as Industrial Energy Production and 17 . 0 acres as Industrial Energy Production/Conservation. On February 7 , 1989 , the Planning Commission held a study session on Zone Change No . 88-18 . At that study session, the City Attorney advised the Commission that the zone change may deny the subject landowners a viable economic use of their property and that the City may be found liable for a taking . Based on that information, the Commission directed staff to prepare a request for withdrawal of the zone change application for action on February 22 , 1989 . C-5 A-F M-23C The Commission further directed staff to prepare an analysis of alternative land uses for the property. Those land uses could then be incorporated into a future Local Coastal Plan for the area . Staff informed the Commission, however, that current levels of staffing will not allow a new "whitehole study" to be addressed as a top priority item. Rather, it may be necessary to wait for the landowners to file an application for land use amendment . Staff could then retain a consultant to prepare the analysis . At the February 22, 1989 meeting the Planning Commission took formal action to withdraw the zone change. Subsequently, this action was appealed to and heard by Council on March 20, 1989 . At that meeting the issue was continued so that an outside legal opinion could be obtained regarding the City' s exposure for a taking . The outside legal opinion was discussed by the City Council at their October 16, 1989 meeting . This opinion addresses the legal question: Does zoning property as Coastal Conservation within the coastal zone constitute a cause of action for a taking pursuant to the Fifth Amendment to the United States Constitution? In summary the opinion states the following: 1 . As applied to a particular parcel , the zoning could give rise to a constitutional claim if the facts showed that the zoning was applied to property that is not, in fact, a "wetland" ; deprived the owner of all viable economic use of his property without justification; or was impermissibly discriminatory. 2 . The zoning of functioning and restorable wetlands property as Coastal Conservation does not, on its face, give rise to a cause of action for a taking because preservation of wetlands serves a legitimate governmental purpose related to the public health, and the zoning, on its face, permits some use of the property. Four additional recommendations were also included: 1 . To reduce potential exposure to liability, the City should consider implementing zoning consistent with the General Plan. 2 . An administrative review procedure should be incorporated into the Coastal Conservation zone to allow applicants to challenge the economic viability of the permitted uses and the designation as wetlands . 3 . The City should also consider adopting a "Transfer of Development Rights" ( "TDR" ) program which would permit the transfer of development rights from certain "sending zone" properties (such as functioning and restorable wetlands) to other properties in the jurisdiction (such as nearby unrestorable wetlands or upland properties) . Staff Report - 12/5/89 -2- (4195d) 4 . Other planning concepts, such as a specific plan, may also be appropriate for the subject properties . Subsequently, the City Council made three recommendations . These were : (1) Refer Zone Change No. 88-18 back to the Planning Commission for action and zoning recommendations consistent with the Certified Land Use Plan of the area . (2) Authorize the formation of a wetlands coalition consisting of property owners, responsible agencies, the City, conservation, and interest group representatives to study alternative land uses for the area . (3) Direct staff to work with the coalition to prepare a land use plan and explore various land planning techniques such as specific plans and Transfer Development Right ' s Programs . 3 . 0 ENVIRONMENTAL STATUS: Pursuant to Section 15265 of the California Environmental Quality Act, Zone Change No. 88-18 is classified exempt . Section 15265 states that CEQA does not apply to approvals by any local government pursuant to the preparation of a local coastal program. Rather, the burden of CEQA compliance is shifted to the California Coastal Commission for the certification of local coastal programs . 4 . 0 COASTAL STATUS: Zone Change No . 88-18 is a part of the local coastal program for the previously non-certified area of the City' s Coastal Land Use Plan. After City Council approval, Zone Change No. 88-18 must be certified by the California Coastal Commission. 5 . 0 ISSUES AND ANALYSIS: Project History: The City' s Coastal Element was prepared in accordance with the California Coastal Act of 1976 , and submitted to the South Coast Regional Coastal Commission for a hearing in May 1981 . The Coastal Element Land Use Plan was rejected by the Coastal Commission at that time partly due to failure to adequately protect wetlands which had been delineated by the Department of Fish and Game in preliminary wetlands studies conducted in 1979 and 1981 . After completion of minor changes, a second rejection by the Coastal Commission, and further modifications , the Land Use Plan was finally certified in geographic part by the Coastal Commission on November 17, 1982 . The Coastal Commission, however, denied certification of the geographic area along the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River, due to the preliminary wetland status assigned_ to it by the Department of Fish and Game. Staff Report - 12/5/89 -3- (4195d) In February 1983 , the Department of Fish and Game released their report entitled "Determination of the Status of the Huntington Beach Wetlands . " That study reaffirmed their preliminary assessment and concluded that 136 . 6 acres of land between Beach Boulevard and the Santa Ana River were either viable or restorable wetland. Most of this wetland area was within the non-certified area of the coastal zone . In 1986, the City of Huntington Beach prepared a study which was intended to resolve the wetland issue and result in a Land Use Plan for the non-certified area . The study analyzed three alternative land use scenarios which were intended to address a range of intensities from almost no development to almost complete development of the area . During an extended public hearing process, the Department of Fish and Game, the California Coastal Conservancy and the Coastal Commission staff emphasized that virtually the only certifiable land use designation under the provisions of the Coastal Act was Conservation. The only exceptions were the Action Boat Brokers property at the southeast corner of Beach Boulevard and Pacific Highway, the strip of land between Cabrillo Mobile Home Park and Pacific Coast Highway, and the developed Edison Company Property. On June 2, 1986 , the City Council concurred with that advice and adopted a Land Use Plan for the area which was largely Conservation. The Coastal Commission subsequently certified that designation. Proposed Zone Change: The Land Use Plan which was adopted and certified by the Coastal Commission is depicted in Attachment No . 1 . Four land uses were approved for this area . These are Visitor Serving Commercial, Conservation, Industrial Energy Production, and Industrial Energy Production with a Conservation Overlay. For purposes of clarity, the subject property has been separated into 10 different areas . Each of these areas is discussed in the Study Session Staff Report dated February 22, 1989 (Attachment No . 2) . Discussion information includes a description of the land use designation; current use, and past , existing and proposed zoning for each area . Pursuant to the Council ' s direction, this zone change has been referred back to the Planning Commission for action. This zone change is consistent with the Certified Land Use Plan for the area previously adopted by Council and the Coastal Commission. Further, the City is required under State Planning Law (Planning, Zoning and Development Laws) to bring the General Plan and Implementing Ordinances , such as the Zoning Code, into conformance with one another . The proposed zone change provides the City with one option to meet that need. The subject zone change affects approximately 232 acres and includes 7 . 0 acres of Visitor Serving Commercial , 17 . 0 acres of Industrial Energy Production with a Coastal Conservation Overlay, 83 . 0 acres of Industrial Energy Production within the Coastal Zone, and 124 . 5 acres of Conservation, as indicated on the map on Attachment No . 1 . Each of these zoning districts and permitted uses is briefly described below. Staff Report - 12/5/89 -4- (4195d) Visitor Serving Commercial District Combined with Coastal Zone and Floodplain Districts : The proposed zoning will permit a hotel, restaurant or other visitor serving commercial uses, which would be located at the corner of Beach Boulevard and Pacific Coast Highway (Area 1) . The narrow strip of property along Pacific Coast Highway could be used as an access road or parking for the commercial use. The property is presently owned by Caltrans . The Coastal Conservancy staff has proposed that Caltrans sell this property back to the Mills Land and Water Company who previously owned it and who presently own other property in the area which has been designated Wetlands by the Department of Fish and Game. Development of a hotel on the site would allow Mills to generate some profit from their interest in the area . The City Council and Coastal Commission agreed with this concept when they designated the property Visitor Serving Commercial on the Land Use Plan. The Coastal Zone (CZ) and Floodplain (FP2) suffixes indicate that the property is geographically located within the coastal zone and subject to flooding . These suffixes pertain primarily to location and are assigned to properties situated within certain boundaries . Coastal Conservation District combined with Coastal Zone and Floodplain Districts : The majority of property in the non-certified area has been identified by the Department of Fish and Game as restorable wetlands and has been designated on the Land Use Plan as Conservation. The proposed zone change is to place the Coastal Conservation District on those properties (Areas 2, 3 , 5, 6 and 7) . The CC (Coastal Conservation) District is a restrictive designation which permits wetland related uses such as pedestrian trails and observation platforms, wetland restoration projects, mineral extraction and limited public works projects . The fact that much of this property is privately owned was discussed in detail during the public hearing process for adoption of the Land Use Plan. This zone change is consistent with the Land Use Plan and does not reduce the impacts on private property owners within the area . Under the adopted Land Use Plan and proposed zoning, the Conservation areas will probably only have market value as restorable wetlands which could be used to mitigate other projects elsewhere in the Coastal Zone . It is anticipated that Conservation designated areas will eventually be restored to functioning wetland status as is presently being done with the 16-acre parcel adjacent to the Santa Ana River mouth. Area 10 is an approximately 2 acre area designated Conservation on the Land Use Plan. It is owned by the City and is presently vacant . The existing zoning is (Q)ROS-FP2 (Qualified Recreational Open Space District combined with Floodplain District) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning . This property was not identified by Fish and Game as wetlands . Staff Report - 12/5/89 -5- (4195d) Industrial District combined with Oil Production, Coastal Conservation, Coastal Zone and Floodplain Districts : This proposed zoning applies to Area 4 which is an approximately 17 acre area designated Industrial Energy Production/Conservation on the Land Use Plan. It has been identified by Fish and Game as degraded wetland. Although the Coastal Act would not normally allow development of so-identified property, the Act would permit development for energy production purposes if it could be demonstrated that no other alternative site is available. Since the property is owned by the Edison company and is adjacent to their generating plant, the special combined designation of Industrial Energy Production/Conservation was placed on it . This Land Use Designation and the proposed zoning recognize the property' s identification as wetlands, but would permit expansion of the powerplant if proven necessary in the future. Areas 8 and 9 shown on Attachment No. 1 are currently designated Industrial Energy Production on the Land Use Plan and are developed with the Edison Company power generating plant and oil storage tanks . The proposed zone change is to add the CZ suffix to the existing zoning designations . Staff ' s Recommended Zone Change: After careful consideration of the need to achieve consistency within the General Plan and Ordinance Code, the Coastal Commission' s recommendations for a Certified Local Coastal Program for the subject area, and the interests of several parties , staff is recommending modifications to the zone change. Staff recommends that the existing zoning remain and that the Coastal Conservation (CC) suffix be applied to all parcels . This change will accomplish the goal of General Plan consistency and would be advantageous for the following reasons : 1 . The CC suffix can be appended to any base district to denote and protect environmentally sensitive areas . This suffix takes precedence over any other base district designation (see Attachment No . 4) . 2 . Application of the CC suffix may satisfy the Coastal Commission ' s requirement that the property be zoned consistent with the Certified Land Use Plan. 3 . A procedure for removal of the CC suffix is detailed in the Ordinance Code. Removal of this suffix requires a zone change with findings approved by the Planning Commission, City Council , and Coastal Commission. This procedure is explicit for the CC suffix and allows applicants to challenge the economic viability of the permitted uses and the designation as wetlands as suggested in the second legal opinion. Staff Report - 12/5/89 -6- (4195d) 4 . In addition to standard findings of compatibility and consistency, additional findings must be made to remove this suffix. These are detailed in the Ordinance Code and require . the proposed change be justified for that site after consideration of alternative locations . 5 . Mitigation measures are defined and described in the Ordinance Code should a CC suffix be removed. In summary, staff believes that the application of the CC suffix will bring the land use plan and the zoning into conformance for the subject area . In addition, the recommendations of the Coastal Commission would be met and the existence of a suffix removal process, as described in the Ordinance Code, provides the affected property owners with a mechanism to challenge this zone change . Staff views the modifications to this zone change as an interim measure to bring the City into conformance with State Planning Law while the newly formed wetlands coalition discusses various options for the subject property. The first meeting of the coalition is scheduled for early January. A report to Council detailing the coalition' s recommendations is anticipated three to four months following the onset of discussions . 6 . 0 RECOMMENDATION: Staff recommends that the Planning Commission approve Zone Change No . 88-18 as modified to retain existing zoning and add the CC suffix on the subject property, with the following findings and forward to the City Council for adoption. FINDINGS FOR APPROVAL: 1 . The proposed zone change as shown on attached map (Exhibit A) is consistent with the General Plan designations adopted by Council and the Coastal Commission because it recognizes the goals of the Land Use Plan. 2 . The proposed zone change as shown on attached map (Exhibit A) is compatible with surrounding General Plan designations of Medium Density Residential and Low Density Residential . 3 . The proposed zone change as shown on attached map (Exhibit A) will not create adverse impacts on the surrounding uses because it is designed to protect the identified wetlands . 4 . The proposed zone change as shown on attached map (Exhibit A) is consistent with the goals and policies of the Coastal Commission and the City' s Coastal Land Use Plan and reconciles the inconsistency between the Land Use Plan and Implementation Plan. Staff Report - 12/5/89 -7- (4195d) 7 . 0 ALTERNATIVE ACTION: Deny Zone Change No. 88-18 as modified with findings and approve Zone Change No . 88-18 as originally proposed. ATTACHMENTS: 1. Proposed Zone Change Map (recommended by staff) 2 . Area Map 3 . Study session staff report dated February 7, 1989 , with related attachments 4 . Memorandum dated September 26, 1989 , from Freilich, Stone, Leitner and Carlisle 5 . City Ordinance Code Sections 9422 through 9422 . 19 SH:REL: kla Staff Report - 12/5/89 -8- (4195d) i ,i � t • I . 1 � � � ••• •O,• •••••��♦gyp ••. ',may.♦�i�•p,•4y,, ' .•`' �:� ♦,y i•••• ••• \ •••�••• �O•• •��•Obi��� +ice`••••► , ,. •• .�i�y�,•♦ =a•••`i► .,•� ,♦♦ ,•• f.�� V FLA9 V. v \ % Ne Yam\ ��\`' v `�-` \ �'i•;�'' .-. l" �,•;';` ;;. Gp. G�Q� O.C.SANITATION =C,oC TRUTNLYTPI.INT \ bub'eot Aye a EXHIBIT A VISITOR SERVING COMMERCIAL -----HAMILTON EXTENSION CONSERVAT IM Af!ltJ. NONCERTIFIED MDUSRT IAL EJERGY PRODUCTION COASTAL AREAS K-WINGTON BEACH CIIFOQNIA PIANNYJG OEPARIMEM IND, ENERGY PROF,./ CONSERVATION huntington beech department of community development srAFF REPORT TO : Planning Commission FROM: Community Development DATE: February 7, 1989 SUBJECT: ZONE CHANGE NO. 88-18 (CONTINUED FROM OCTOBER 4 , 1988 PLANNING COMMISSION MEETING) APPLICANT: City of Huntington Beach REQUEE_T: Change of zoning on various parcels to achieve consistency with Land Use Plan. LOCATION: Inland side of Pacific Coast Highway between Beach Boulevard and Pacific Coast Highway ACREAGE: Approximately 232 acres 1 . 0 SUGGESTED ACTION: Direct staff to either proceed with Zone Change No. 88-18 or prepare a new Coastal Element Amendment for the study area . 2 . 0 GENERAL INFORMATION: On June 2 , 1986, the City Council adopted a Land Use Plan for the non-certified coastal zone area along Pacific Coast Highway, between Beach Boulevard and the Santa Ana River . On April 13 , 1987 the California Coastal Commission certified the Land Use Plan as submitted by the City. The Land Use Plan, as certified, designates approximately 7 . 0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production and 17 . 0 acres as Industrial Energy Production/Conservation. The purpose of this zone change is to apply appropriate zoning designations to the properties in order to achieve consistency with the Land Use designations and to complete certification of the Local Coastal Program for the City. The zone change was first transmitted to the Planning Commission on October 4 , 1988 . At that time, however , the City Attorney requested that it be continued to a later date so that the legal ramifications of the zone change could be assessed . On December 6 , 1988 , the City S� ssLo4�4, A-f M-23C a Attorney advised staff to withdraw the zone change application. Father than accept the withdrawal , the Planning Commission continued the item to a study session on February 7 , 1989 , to consider whether or not to process the zone change. 0_ .._EI�IYZBS2dMENTAL STATUB: Pursuant to Section 15265 of the California Environmental Quality Act , Zone Change No . 88-18 is classified exempt . Section 15265 :states that CEQA does not apply to approvals by any local government pursuant to the preparation of a local coastal program. Rather, the burden of CEQA compliance is shifted to the California Coastal Commission. 4 . 0 COASTAL STATUS: Zone Change No . 88-18 is a part of the local coastal program for the previously non-certified area of the City' s Coastal Land Use Plan. After City Council approval, Zone Change No. 88-18 must be certified by the California Coastal Commission. z. O _ ISSUES AND ANALYSIS: The City' s Coastal Element was prepared in accordance with the California Coastal Act of 1976, and submitted to the South Coast Regional Coastal Commission for a hearing in May 1981 . The Coastal Element Land Use Plan was rejected by the Coastal Commission at that time partly due to failure to adequately protect wetlands which had been delineated by the Department of Fish and Game in preliminary wetlands studies conducted in 1979 and 1981 . After completion of minor changes , a second rejection by the Coastal Commission, and further modifications , the Land Use Plan was finally certified in geographic part by the Coastal Commission on November 17 , 1982 . The Coastal Commission, however, denied certification of the geographic area along the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River, due to the preliminary wetland status assigned to it by the Department of Fish and Game . In February 1983 , the Department of Fish and Game released their report entitled "Determination of the Status of the Huntington Beach Wetlands . " That study reaffirmed their preliminary assessments and concluded that 136 . 6 acres of land between Beach Boulevard and the Santa Ana River were either viable or restorable wetland. Most of this wetland area was within the non-certified area of the coastal zone . In 1986 , the City of Huntington Beach prepared a study which was intended to resolve the wetland issue and result in a Land Use Plan for the non-certified area . The study analyzed three alternative land use scenarios which were intended to address a range of intensities from almost no development to almost complete Study Session - 2/7/89 -2- ( 1979d) development of the area . During an extended public hearing process, the Department of Fish and Game, the California Coastal Conservancy and the Coastal Commission staff emphasized that virtually the only certifiable land use designation under the provisions of the Coastal Act was Conservation. The only exceptions were the Action Boat Brokers property at the southeast corner of Beach Boulevard and Pacific Highway, the strip of land between Cabrillo Mobile Home Park and Pacific Coast Highway, and the developed Edison Company Property. On June 2, 1986 , the City Council concurred with that advice and adopted a Land Use Plan for the area which was largely Conservation. The Coastal Commission subsequently certified that designation. The Land Use Plan which was adopted and certified by the Coastal Commission is depicted in Figure 1 . The purpose of this zone change is to apply appropriate zoning over the land use plan. For purposes of clarity, the subject property has been separated into 10 different areas . The following is a description of the land use designation, existing use, existing zoning and proposed zoning for each of the 10 areas . AREA 1 AUE&GE: 7 acres OWNERSHIP: CalTrans QENERAL PLAN HISTORY: 1975 - Destination Resort 1977 - Planning Reserve 1982 - "Whitehole" 1986 - Visitor-Serving Commercial ZONING HISTORY: Pre-1964 - R1 1964 - RA-0 1983 - RA-O-FP2 Proposed 1989 - VSC-CZ-FP2 EXISTING USE: Action Boat Brokers This is an approximate 7 acre site which was designated by the Coastal Land Use Plan for Visitor Serving Commercial . it is occupied by Action Boat Brokers on the corner of Beach Boulevard and Pacific Coast Highway. . The remainder of the site is a narrow strip of land which runs along Pacific Coast Highway in front of Cabrillo Mobilehome Park. The Department of fish and Game identified this site as non-restorable wetlands . The Coastal Conservancy staff further recommended this site for Visitor-Serving Commercial uses such as a hotel . The existing zoning is RA-0-FP2 (Residential Agriculture District combined with Oil Production and Floodplain Districts) . The proposed zoning is VSC-CZ-FP2 (Visitor Serving Commercial District combined with Coastal Zone and Floodplain Districts) . Study Session - 2/7/89 -3- ( 1979d) The proposed zoning will permit a hotel, restaurant or other visitor serving commercial uses, which would be located at the corner of Beach Boulevard and Pacific Coast Highway. The narrow strip of property along Pacific Coast Highway could be used as an access road or parking for the commercial use. The property is presently owned by Caltrans . The Coastal Conservancy staff has proposed that Caltrans sell this property back to the Mills Land and Water Company who previously owned it and who presently own other property in the area which has been designated Wetlands by the Department of Fish and Game . Development of a hotel on the site would allow Mills to generate some profit from their interest in the area . The City Council and Coastal Commission agreed with this concept when they designated the property Visitor Serving Commercial on the Land Use Plan . AREA 2 ACREAGE: 28 acres OWNERSHIP: Mills Land and Water - 7 . 15 acres CalTrans - 21 acres GENERAL L PLAN HISTOR 1975 - Destination Resort 1977 - Planning Reserve 1982 - "Whitehole" 1986 - Conservation ZONING HISTORY: Pre-1964 - Ri 1964 - RA-0 1983 - RA-O-FP2 Proposed 1989 - CC-CZ-FP2 EXISTING USE: Vacant This is an approximately 28 acre area designated Conservation on the Land Use Plan. It has been identified by the Department of Fish and Game as Degraded Wetlands with high usage by wetlands associated birds . The site is owned in part by Caltrans and in part by Mills Land and Water Company. It is presently vacant . The existing zoning is RA-O-FP2 (Residential Agricultural District combined with Oil Production and Floodplain Districts) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation District combined with Coastal Zone and Floodplain Districts) . Under the Coastal Conservation designation , allowable uses are limited to those such as mineral extraction, pedestrian trails and observation platforms , wetland restoration projects and limited public works projects . Study Session - 2/7/89 -4- (1979d) AREA 3 ACREAGE: 13 acres QWRERSNIp: Mills Land and Water GL•'NE13AL PLAN 1115WRY : 1975 - Light Industrial 1977 - Light Industrial 1982 - "Whitehole" 1986 - Conservation ZONING HISTORY: Pre-1961 - R1 1961 - M1 1964 - M1-A-O 1983 - M1-A-O-FP2 Proposed 1989 - CC-CZ-FP2 EXISTING USE: Vacant This is an approximately 13 acre area designated Conservation on the Land Use Plan. It was identified by Fish and Game as Degraded Wetlands on a portion of the site, and former but restorable wetlands on the remainder . It is owned by Mills Land and Water Company and is presently vacant . The existing zoning is M1-A-0-FP2 (Restricted Manufacturing District combined with Oil Production and Floodplain Districts) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation District combined with Coastal Zone and Floodplain District) . AREA 4 ACREAGE: 17 acres OWNERSHIP: Southern California Edison Company GENERAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Industrial Public Utility 1983 - "Whitehole" 1986 - Industrial Energy Production/Conservation ZONING HISTORY : Pre- 1961 - P.1 1961 - M1-A 1962 - M2-0 1983 - M2-0-FP2 Proposed 1989 - M2-0-CC-CZ-FP2 EXISTING USE: Vacant This is an approximately 17 acre area designated Industrial Energy Production/Conservation on the Land Use Plan. It has been identified by Fish and Game as Degraded Wetland . Although the Coastal Act would not normally allow development of so-identified property, the Act would permit development for energy production Study Session - 2/7/89 -5- (1979d) purposes if it could be demonstrated that no other alternative site is available . Since the property is owned by the Edison company and is adjacent to their generating plant, the special combined designation of Industrial Energy Production/Conservation was placed on it . This Land Use Designation recognizes the property' s identification as wetlands , but would permit expansion of the powerplant if necessary. The existing zoning on the property is M2-0-FP2 ( Industrial District combined with Oil Production and Floodplain district) and RA-FP2 (Residential Agricultural District combined Floodplain District) . The Proposed zoning is M2-O-CC-CZ-FP2 (Industrial District combined with Oil Production, Coastal Conservation, Coastal Zone and Floodplain Districts) . This zoning designation will allow expansion of the powerplant if proven necessary in the future. AREA ACREAGE: 10 acres OWNERSHIP: Daisy Piccirelli GENERAL PLAN HISTORY: 1975 - Planning Reserve 1977 - Planning Reserve 1983 - "Whitehole" 1986 - Conservation ZO.N.IN-G_ HISTORY: Pre 1977 - R5 1977 - LUD 1983 - LUD-FP2 Proposed 1989 - CC-CZ-FP2 EXISTING USE: Vacant This is an approximately 10 acre area designated Conservation on the Land Use Plan and is presently vacant . It is owned in part by Caltrans , Daisy Piccirelli and the Orange County Flood Control District . The Department of Fish and Game has identified this area as Degraded Weland with high usage by wetland associated birds . The existing zoning is LUD-FP2 (Limited Use District combined with Floodplain District) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation combined with Coastal Zone and Floodplain Districts) . AREA 6 ACREAGE : 56 acres OWNERSHIP: Daisy Piccirelli - 35 acres CalTrans - 21 acres GENERAL PLAN HISTORY: 1975 - Planning Reserve 1977 - Planning Reserve 1983 - "Whitehole" 1986 - Conservation Study Session - 2/7/89 -6 (1979d) ZONING HISTORY: Pre 1960 - R1 1960 - R5 1977 - LUD 1983 - LUD-FP2 Proposed 1989 - CC-CZ-FP2 EXISTING-USE: vacant This is an approximately 56 acre area designated Conservation on the Land Use Plan and is presently vacant . It is owned in part by Caltrans , Daisy Piccirelli and the Orange County Flood Control District . The Department of Fish and Game has identified this property as Degraded Wetlands with high usage by wetland associated birds . The existing zoning is LUD-FP2 (Limited Use District combined with Floodplain District) . The proposed zoning is CC-CZ-FP2 (Coastal Conservation combined with Coastal Zone and Floodplain Districts) . AREA 7 ACREAGE: 16 acres OWNERSHIP: H. B. Wetlands Conservancy .G_FERAL PLAN tilQ$Y: 1975 - Planning Reserve 1977 - Planning Reserve 1983 - "Whitehole" 1986 - Conservation ZONING HISTORY: Pre 1960 - R1 1960 - R5 1977 - LUD 1983 - LUD-FP2 Proposed 1989 - CC-FP2 EXISTING USE : Restored Wetlands This is an approximately 16 acre area designated Conservation on the Land Use Plan . it was recently acquired by the Coastal Conservancy and is being restored to functioning wetlands in a model restoration project . The Huntington Beach Wetlands Conservancy will manage the project . The existing zoning on the property is LUD-FP2 (Limited Use District combined with Floodplain District) and LUD-FP1 (Limited Use District combined with Floodway District) . The proposed zoning is CC-CZ-FP1 (Coastal Conservation District combined with Coastal zone and Floodway Districts) . Study Session - 2/7/89 -7- (1979d) AREA 8 MMAGE : 55 acres OWNERSHIP: Southern California Edison Company QU ERAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Public/Quasi-Public 1983 -- Public/Quasi-Public 1986 - Industrial Energy Production _ZONING HISTORY: Pre 1961 - R1 1961 - M1-A 1962 - M2-0 1983 - M2-0-FP2 Proposed 1989 - M2-O-CZ-FP2 EXISTING USE: Power Plant This is an approximately 55 acre area designated Industrial Energy Production on the Land Use Plan and is developed with the Edison Company power generation plant . The existing zoning is M2-O-FP2 ( Industrial District combined with Oil Production and Floodplain Districts) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning designations . AREA 9 ' ACREAGE: 28 acres OWNERSHIP : Southern California Edison Company GENERAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Public/Quasi-Public 1983 - Public/Quasi-Public 1986 - Industrial Energy Production ZONING HISTORY: Pre 1961 - R1 1961 - M1 1962 - M2-0 1983 - M2-0-FP2 Proposed 1989 - M2-O-CZ-FP2 EXISTING USE : Oil Storage Tanks This is an approximately 28 acre area designated Industrial Energy Production on the Land Use Plan and is developed with oil storage tanks for the Edison generating plant . The existing zoning is M2-0-FP2 ( Industrial District combined with Oil Production and Floodplain Districts) and M1-A-FP2 (Restricted Manufacturing District combined with Floodplain District) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning designations . Study Session - 2/7/89 -8- (1979d) AREA 10 &c2zAGE : 2 acres QWNERSHIP: City of Huntington Beach GENERAL PLAN HISTORY: 1975 - Industrial Public Utility 1977 - Public/Quasi-Public 1984 - Public/Quasi-Public 1986 - Conservation ZONING HISTORY: Pre 1961 - R1 1961 - M1-A 1983 - M1-A-FP-2 1984 - Q(ROS)-FP2 Proposed 1989 - Q(ROS)-CZ-FP2 EXISTING USE: Vacant This is an approximately 2 acre area designated Conservation on the Land Use Plan. It is owned by the City and is presently vancant . The existing zoning is (Q)ROS-FP2 (Qualified Recreational Open Space District combined with Floodplain District) . The proposed zone change is to add the CZ (Coastal Zone) suffix to the existing zoning . This property was not identified by Fish and Game as wetlands . As the above description indicates, the majority of property in the non-certified area has been identified by Fish and Game as restorable wetlands and has been designated on the Land Use Plan as Conservation. The proposed zone change is to place the Coastal Conservation District on those properties . The CC (Coastal Conservation) District is a very restrictive designation which only permits wetland related uses and limited public works projects . The fact that much of this property is privately owned was discussed in detail during the public hearing process for adoption of the Land Use Plan. This zone change is consistent with the Land Use Plan and does not reduce the impacts on private property owners within the area . Under the adopted Land Use Plan and proposed zoning , the Conservation areas will probably only have market value as restorable wetlands which could be used to mitigate other projects elsewhere in the Coastal Zone. It is anticipated that Conservation designated areas will eventually be restored to functioning wetland status as is being done with the 16-acre parcel adjacent to the Santa Ana River month . The Non-Certified Coastal Areas Analysis prepared by the City of Huntington Beach and dated May 1986 should be consulted for further analysis of the land use designations and development or restoration possibilities . Study Session - 2/7/89 -9- (1979d) 'If the Planning Commission chooses not to pursue the zone change, it will be necessary to prepare a new land use amendment and an environmental impact analysis for submittal to the Coastal Commission . Based on past experience, such a package would take at :!east six months to prepare and would be rejected by the Coastal Commission, as well as solidly opposed by all interested parties Except the "whitehole" property owners . The primary benefit of such ii process may be that it would absolve the City of liability in a takings lawsuit by the property owners . (j, Q RECOMMENDATION: Direct staff to either proceed with zone Change No . 88-18 or prepare a new Coastal Element Amendment for the study area . ATTACHMENTS: 1 . Area Map 2 . Ordinance and Resolution for adoption by City Council 3 . City Council Resolution adopting Coastal Element Amendment No . 86-1 dated June 2, 1986 . A . Coastal Commission Resolution and Findings Certifying the Land Use Plan for the area of deferred certification between Beach Boulevard and the Santa Ana River mouth, dated April 13, 1987 . 5 . Non-certified Coastal Areas Analysis prepared by the City of Huntington Beach, dated May 1986 . HS : kla Study Session - 2/7/89 -10- (1979d) - •.rr•` r i I \ . 10 VIA 0C.S.,..- TATION + D,�! K 0C` TTIEATNENTPLANT C ?i. ,+ _ :'� �•. :. /� ,�-, _ :y. rye cmc Go EXHIBIT A VISITOR SERVING COMMERCIAL -----IIAM I LTON EXTENSION FF-i' CONSERVAT I011 Afftk NONCERTIREE .0000IIIDUSRTIAL ENERGY PItODUCTlON ASTAL AREA HurrTNOTON BEACH CgF<)QW IND, ENERGY PROD./ CONSERVATION ZOt4E C1'AN6� � 10 P,�� DEPARTMENT ORDINANCE NO. ZONE CHANGE NO. 88-18, AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING THE SECTION 9061 THEREOF TO PROVIDE FOR A CHANGE OF ZONING WITHIN VARIOUS DISTRICTS WITHIN THE COASTAL ZONE TO VISITOR SERVING COMMERCIAL, INDUSTRIAL DISTRICT WITH A COASTAL CONSERVATION OVERLAY, OR COASTAL CONSERVATION. WHEREAS, Pursuant to the State Planning and Zoning Law, the Huntington Beach Planning Commission and Huntington Beach City Council have had separate public hearings relative to Zone Case No. 88-18 wherein both bodies have carefully considered all information presented at said hearings, and after due consideration of the findings and recommendations of the Planning Commission and all evidence presented to said City Council , the City Council finds that such zone change is proper, and consistent with the general plan. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows : SECTION 1 . The following described real property, designated A, consisting of approximately 7± acres , located on the inland side of Pacific Coast Highway at the northeast corner of the intersection of Beach Boulevard and Pacific Coast Highway and extending east along Pacific Coast Highway to Newland Street , is hereby changed from RA-O-FP2 (Residential Agricultural within an Oil District within a Flood Plain) to VSC-CZ-FP2 (Visitor Serving Commercial within the Coastal Zone within a Flood Plain) . In the City of Huntington Beach, County of Orange , State of California , being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West , S . B. B. & M. in the Rancho Las Bolsas , per map recorded in Book 51 , Page 14 of Miscellaneous Maps in the office of the Recorder of said county, described as follows : Beginning at a point on the easterly right-of-way line of Beach Boulevard and the northwest corner of Parcel A1787 as shown on Division of Highways Appraisal Map No . F-1712-2; thence southeasterly 309 . 12 feet along the north line of said parcel A1787, said north line also being the northerly line of the boat storage facility; thence northeasterly 41 . 61 feet; thence southeasterly 200 . 00 feet; thence southwesterly 31 . 00 feet to the chainlink fence for the northerly limits of said boat storage facility; thence southeasterly 400 . 00 feet along said northerly limits to the fence corner for the easterly limits of said boat storage facility; thence southeasterly 135 . 00 feet to the fence for the southwest corner of the Cabrillo Mobile Home Park; thence southeasterly 723 . 50 feet along southerly fence for said Mobile Home Park; thence southwest 40 . 00 feet to the northerly right-of-way line Pacific Coast Highway. Thence northwesterly along said right-of-way line to the easterly right-of-way line of Beach Boulevard; thence northerly along easterly right-of-way line of Beach Boulevard to the point of beginning . And, that portion of land bounded on the east by Newland Street , bounded on the south by Pacific Coast Highway, bounded on the west by a line parallel to and distant 401. 00 feet from the centerline of Newland Street and bounded on the north by the block wall for the southerly limits of the vehicular storage facility. SECTION 2 . The following described real property, designated B, consisting of approximately 28 acres , generally located on the east side of Beach Boulevard beginning approximately 200 feet north of the northeast corner of the intersection of Pacific Coast Highway and Beach Boulevard and extending north approximately 500 feet , is hereby changed from RA-0-FP2 (Residential Agricultural within an Oil District within a Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain). Ordinance No . -2- (0925d) In the City of Huntington Beach, County of Orange, State of California , being that portion of fractional Section 13 and that .1 portion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas , per map recorded in Book 51 , Page 14 of Miscellaneous Maps in the office of the Recorder of said county, described as follows : Beginning at a point on the easterly right-of-way line of Beach Boulevard and the .northwest corner of Parcel A1787 as shown on Division of Highways Appraisal Map- No . F-1712-2 ; thence southeasterly 309 . 12 feet along the north line of said Parcel A1787, said north line also being the northerly line of the boat storage facility; thence northeasterly 41 . 61 feet; thence southeasterly 200 . 00 feet; thence southwesterly 31. 00 feet to the chainlink fence for the northerly limits of said boat storage facility; thence southeasterly 400 . 00 feet along said northerly limits to the fence corner for the easterly limits of said boat storage facility; thence southeasterly 135 . 00 feet to the fence for the southwest corner of the Cabrillo Mobile Home Park; thence northeasterly 246 . 50 feet along said fence to the blockwall for the westerly limits of a Mobile Home Park; thence northwesterly 325 . 50 feet along said blockwall to the southerly right-of-way line of the Orange County Flood Control District right-of-way line; thence easterly 300 . 00 feet along said right-of-way line; thence northerly to the southwesterly right-of-way of line of the Orange County Flood District D01 Channel ; then_ge northwesterly along said right-of-Way line to the southeast corner of Parcel 1 of Parcel Map No . 84-590 as shown on a map recorded in Book 202, Page 48 thru 50 , of Parcel Maps , records of Orange County, California; thence westerly 438 . 28 feet along the southerly line of said Parcel 1 to the easterly right-of-way line of Beach Boulevard; thence southerly along said right-of-way line to the point of beginning . Ordinance No . -3- (09�5d) SECTION 3 . The following described real property, designated C, consisting of approximately 13 acres, generally located to the north and to the west of the Orange County Flood Control channel D1-2 is hereby changed from M1-A-0-FP2 (Restricted Manufacturing within an Oil District within the Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . That portion of the southwest 1/4 of Section 13 , Township 6 south, Range 11 west , in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California , as shown on a map recorded in book 51, page 14 of Miscellaneous Maps , in the Office of the County Recorder of said County-,. described as follows : A 16 . 37± acre parcel bounded on the north side by the projection of the center line of Hamilton Avenue, on the east side by the west right-of-way line of Newland Street , on the south and west sides by the northerly and easterly right-of-way lines of the Orange County Flood Control Channel D01 . SECTION 4 . The following described real property, designated D, consisting of approximately 17 acres , generally located on the inland side of Pacific Coast Highway to the east of the Edison Company Power Plan and extending east along Pacific Coast Highway approximately 1, 000 feet and north to the Orange County Flood Control Channel D1-1 , is hereby changed from M2-O-FP2 ( Industrial District within an Oil District within a Flood Plain) and RA-FP2 (Residential Agricultural within a Flood Plain) to M2-0-CC-CZ-FP2 ( Industrial District within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . i Ordinance No . -4- (0925d) In the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that , portion of fractional Section 24 all in Township 6 South, Range 11 'West, S.B. B. & M. in the Rancho Las Bolsas , per map recorded in Book 51 , Page 14 of Miscellaneous Maps in the office of the Recorder of said county, described as follows : Beginning at a point on the northerly right-of-way line of Pacific Coast Highway distant 974 . 27 feet southeasterly from the centerline of Newland Street, said point also being the most southern point of Parcel 1 as shown on a record of survey map recorded in Book 43 , Page 2, records of said County; thence N61057 ' 10"E 1006 . 10 feet along the southeasterly line of said Parcel 1 ; thence N81003 ' 39"E 343 . 91 feet to the southwesterly right-of-way line of the Orange County Flood Control District D01 Channel; thence southeasterly 350 . 00 feet along said right-of-way line to a point, said point also being the easterly line of a record of survey as shown on a map recorded in Book 74 , Page 11, records of said County; ; thence S34035 ' 30"W 1009 . 83 feet along said easterly line to the northerly right-of-way line of Pacific Coast Highway; thence N55024 ' 30"W 1040 . 00 feet along said right-of-way line to the point of beginning . SECTION 5 . The following described real property, designated E, consisting of approximately 10 acres , generally located on the inland side of Pacific Coast Highway at the northwest corner of Pacific Coast Highway and Magnolia Street and extending approximately 700 feet west along Pacific Coast Highway and north to the Orange County Flood Control District Channel Dl-1 , is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . Ordinance No . -5- (0925d) That portion of the northeast 1/4 of Section 24 , Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California , described as follows : A 10 . 41± acre parcel bounded on the north side by the Orange County Flood Control D01 channel , on the east side by the westerly right-of-way line of Magnolia Street, on the south by the northerly right-of-way line of Pacific Coast Highway, on the west by a 1009 . 83 ' line north 34035 ' 30" east which intersects the centerline of Pacific Coast Highway 2, 014 . 27 feet east of the centerline of Newland Street . SECTION 6 . The following described real property, designated F, consisting of approximately 56 acres , generally located on the inland side of Pacific Coast Highway between Magnolia Street and Brookhurst Street and north to the Orange County Flood Control District Channels D1-1 and D2-2, is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to CC-CZ-FP2 (Coastal Conservation within the Coastal Zone within a Flood Plain) . r That portion of the west 1/2 of Section 19 , Township 6 south, Range 10 west, in the Rancho Las Bolsas , City of Huntington Beach, County of Orange, State of California described as follows : A 56 . 28± acre parcel bounded on the north by the southerly right-of-way line of the Orange County D01 and D02 Flood Control Channel , on the east by the westerly right-of-way line of Brookhurst Street , on the south by the northerly right-of-way line of Pacific Coast Highway and on the west by the easterly right-of-way line of Magnolia Street . SECTION 7 . The following described real property, designated G, consisting of approximately 16 acres , generally located on the inland side of Pacific Coast Highway between Ordinance No . -6- (0925d) Brookhurst Street and the Santa Ana River extending north to the Orange County Flood Control District Channel D2-1, is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) and LUD-FP1 (Limited Use District within a Flood Plain) to CC-CZ-FP1 (Coastal Conservation within the Coastal Zone within a Flood Plain) . That portion of Section 19, Township 6 South, Range 10 West, in the Rancho Las Bolsas, in the City of Huntington Beach, County of Orange, as shown on map recorded in Book 51, page 14 of Miscellaneous Maps, in the office of the County Recorder of said County, acquired by the State of California by Parcel 3 of Final Order of Condemnation (State Parcel A1788) , filed in Superior Court Case No . 123366, a certified copy of said final order being recorded April 29 , 1965 in Book 7502, page 533 of Official Records, in said office, described as follows : Beginning at a point in the easterly line of said acquired land , distant along said easterly line N16037 ' 29"E, 21 . 32 feet from t the most southerly corner of said acquired land; thence N61037 ' 48"W, 134 . 70 feet to the southwesterly line of said acquired land; thence along last said line N53005 ' 28"W, 250 . 00 feet; thence N49°39 ' 27"W, 250 .45 feet to a line parallel with and distant northeasterly 15 . 00 feet , measured at right angles , from said southwesterly line; thence along said parallel line N53°05 ' 28"W, 800 . 00 feet; thence N50013 ' 43"W, 200 . 25 feet to a line parallel with and distant northeasterly 25 . 00 feet , measured at right angles from said southwesterly line; thence along last said parallel line v53005 ' 28"W, 459 . 00 feet to that course described as S8°04 ' 59"E, 23 . 94 feet in Parcel 3 of Director 's Deed DE 011788-01-02, recorded December 13 , 1978 in Book 12960, page 1891 of said Official Records ; thence along last said course S8004 ' 59"E, 7 . 07 feet to the southeasterly terminus of that course described as N53`05 ' 28"W, 23 . 70 feet in last mentioned Parcel 3 ; thence along last said course N53005 ' 28"W, 23 . 70 feet to the southerly terminus of that tangent J Ordinance No . -7- (0925d) curve described as having a radius of 25 . 00 feet in last said Parcel 3 ; thence northerly along said curve to the southeasterly line of Brookhurst Street (formerly Wright Street) , 80 . 00 feet wide, as described in deed to the County of Orange, recorded in Book 2535, page 578 of said Official Record,; thence along said southeasterly line N38°35 ' 50"E, 395 . 83 feet to the southwesterly line of the parcel of land conveyed to A.C. Thorpe by deed recorded in Book 302, page 69 of deeds, in said office; thence, generally southeasterly along last said southwesterly line to said easterly line; thence southerly along said easterly line to the point of beginning . SUBJECT TO THE EXCEPTION THEREFROM, all oil, oil rights , minerals , mineral rights, natural gas, natural gas rights, and other hydrocarbons by whatsoever name known that may be within or under the herein conveyed parcel of land, and the rights thereto, together with certain other conditions, as excepted in first mentioned Parcel 3 . SECTION 8 . The following described real property, )designated H and commonly known as the Edison Company, located on the inland side of Pacific Coast Highway at the northeast corner of the intersection of Newland Street and Pacific Coast Highway and extending north to the Orange County Flood Control District D1-1 channel , is hereby changed from M2-0-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-0-CZ-FP2 ( Industrial District within an Oil District within the Coastal Zone within a Flood Plain) . In the City of Huntington Beach, County of Orange, State of California , being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West , S . B . B. & M. in the Rancho Las Bolsas , per map recorded in Book 51 , Page 14 of Miscellaneous Maps in the Office of the Recorder of said County, described as follows : Ordinance No. -8- (0925d) Beginning at a point on the northerly right of way line of Pacific Coast Highway distant 974 . 27 feet southeasterly from the centerline of Newland Street , said point also being the most southern point of Parcel 1 as shown on a record of survey map recorded in Book 43 , Page 2, records of Said County; thence 1461057 ' 10"E 1006 . 10 feet along the southeasterly line of said Parcel 1; thence N81003139"E 343 . 91 feet to the southwesterly right - of way line of the Orange County Flood Control District DO1 - Channel ; thence northwesterly and westerly along said right of way line to the easterly right of way line of Newland Street; thence southerly and southwesterly along said right of way line to the northerly right of way line of Pacific Coast Highway; thence southeasterly along said right of way to the point of beginning . SECTION 9 . The following described real property designated I , consisting of approximately 28 ± acres, located northwest of the intersection of Magnolia Street and the Orange County Flood Control District D1-1 and commonly known as the Edison ' Oil Tank Farm, is hereby changed from M2-O-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-O-CZ-FP2 ( Industrial District within an Oil District within the Coastal Zone within a Flood Plain) and from M1-A-FP2 (Restricted Manufacturing within a Flood Plain) to M1-A-CZ-FP2 (Restricted Manufacturing within the Coastal Zone within a Flood Plain) . That portion of the southeast 1/4 of Section 13 , Township 6 south, Range 11 west , in the Rancho Las Bolsas , City of Huntington Beach, County of Orange, State of California, as shown on a map recorded in Book 51 , Page 14 of Miscellaneous Maps , in the Office of the County Recorder of said County, described as follows : A 28 . 17 acre parcel bounded on the east and south-east by the westerly and northwesterly right-of-way line of Magnolia Street , on the southwest by the northeasterly right-of-way line of Ordinance No . -9- (0925d) the Orange County Flood Control Channel D01, on the north by the north line of the SE 1/4 of the SE 1/4 of Section 13 , Township 6 south, Range 11 west, on the south by a line accepted as the south line of Section 13 , Township 6 south, Range 11 west . SECTION 10 . The following described real property designated J, consisting of approximately 2 ± acres, located at the northeast intersection of Magnolia Street and the Orange County F1ood' Control District D1-1 Channel , is hereby changed from (Q)ROS-FP2 (Recreational Open Space with Qualified Classifications within a Flood Plain) to ROS-Q-CZ-FP2 (Recreational Open Space with Qualified Classifications within the Coastal Zone within a Flood Plain) . That portion of northeast 1/4 of Section 24 , Township 6 south Range 11 west , in the Rancho Las Bolsas , City of Huntington Beach, County of Orange, State of California, described as follows : A 2 ± acre triangular parcel bounded on the east by the westerly boundary of Tract 3903 , on the northwest by the southeasterly right-of-way line of Magnolia Street and on the southwest by the north-easterly right-of-way line of the Orange County Flood Control Channel DO-1 . SECTION 11 . The Community Development Director is hereby directed to amend Section 9061, District Maps 14 , 22 , and 29 (Section District Maps 13-6-11, 19-6-10 , 24-6-11) to reflect Zone Change No . 88-18 described in Sections 1 through 10 hereof . Copies of said district maps , as amended hereby, are available for inspection in the office of the City Clerk. SECTION 12 . This ordinance shall take effect thirty days after its adoption . Ordinance No . -10- (0925d) PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 1988 . Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Community Development f J -- Ordinance No. -11- (0925d) 'LANNINu- LUNINU DM. 1.4 SECTIONAL DISTRICT MAP 1.3--6- 11 __- _.. ' NOTE CITY . OF ���r....... ..` ADOPTED MARCH 1. ID6O rr.ar•.,`•�..�r •�w aar.t• r w•r r � GTT COUNCIL ORDINANCE 00. Tf. 1 �� pgplyp. 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MI[.o i 'q RI-CZ-FP2 M 2-0- P2 s�C'�"A'4`y_„ LUD-FP2 i f � LUD-FP2 "c l� '�, A2 0cf LANNING ZONING DM 22 'SECTIONAL DISTRICT MAP 1�-6.10 NOTE' . ►1•►•...x N .t(• • IM •e.e...a • . I ... CITY OF .ocou.c r.wu. END, ur• cotrwcti owaw•wc[ no iw F &.."� e•♦M( .•M t. ae.Y•ce M•eK. tcnf .Ie.w 41..C1.•e•1/4.•l M•K• �p. ir.( d.0•V W.qD.`i.I 101 Ne• �bQ.r•k •e•O►NI.\M•�C• • HUNTINGTON BEACH /JD♦ w1M J�'t Y• Y :•.•[1 U.1.•rl(/•.a•e((.et•tl eer+<• •(r Y•er ...• Y^le ex et•K. ORANGE COUNTY, CALIFORNIA ��i-�I :I-t�i• — x•e.c• .r .r.ti w•t I1•. o to+<G• .o. `•i�ii i�4 {�o. a tart: ...e. u1 U N I5 RI RI �pE RI tat L _/wi.pl w..p t_cr ei Rl'5, �i 1 3 % "JR1 N 1U7 U L/5/ If�'� U 1 Fll �• Rl Rt u I '•c. d, iRl r• RI / t ►� {{ C RI RI Rl Ili.•^�f �2 s c„ IR - e L R I �� R I � I R I pe RI \ 1 RI i RI c4"'Q F �. _mot• ��� Q ' cl /� z /�j �A2 ` f 10 L _ JOB C/ry DP' H 5. Za IA16 A W-6,4 S EMERALD ENGINEERING 1 18600 Main Street Suite 160 SHEET NO. OF HUNTINGTON BEACH, CAUFORNIA 92648 !Joy �3f1KE�C �9!/6.25 �qd8 (714) 848-4551 CALCULATED By GATE CHECKED BY DATE SCALE 6 rs- 4AQCt c NA/ Ve.dl•570 o� 94 cl c� V b 4 � v ` a0 cam' P•4�FCEG 9 a Q ti r bJ � j0000' 3a9�2 b\V z s o. Zoo srp , ST � �Ly A?"lo JOB Cl TY pF �/. $. ZoA✓ING - EMERALD ENGINEERING n 18600 Main Street Suite 160 SHEET NO 2 OF HUNTINGTON BEACH, CALIFORNIA 92648 Pon/ BAeER 4& ,4u6. ZS /`188 (714) 84551 CALCULATED By DATE CHECKED BY DATE SCALE 401 ' 1 . VEHi�UL�g \O srpP�G� 'c- i 'C ry 4 P,4R C,5 L /o a. � P,4c1f16 C04S7- hewY. f i RESOLUTION NO. 5670-A A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH APPROVING COASTAL ELEMENT AMENDMENT NO. 86-1 TO THE GENERAL PLAN WHEREAS , the City Council of the City of Huntington Beach desires to update and refine the General Plan in keeping with changing community needs and objectives ; and A public hearing on adoption of Coastal Element Amendment No . 86-1 to the General Plan was held by the Planning Commission on April 22 , 1986, and approved for recommendation to the City Council ; and Thereafter the City Council, after giving notice as prescribed by law, held at least one public hearing to consider Coastal Element Amendment No. 86-1 ; and At said hearing before the City Council all persons desiring to be heard on said amendment were heard, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Huntington Beach, that Coastal Element Amendment No. 86-1 consisting of the following changes is hereby adopted : Designate the 231 . 5 acre non-certified white hole area for 7 acres of Visitor Serving Commercial , 17 acres of Industrial Energy Production/Conservation, 83 .0 acres of Industrial Energy Production and 124 . 5 acres of Conservation as indicated in Exhibit A, attached hereto and incorporated by reference herein . Coastal Element Amendment No. 86-1 will be presented to the California Coastal Commission as the Land Use Plan for the uncertified white hole area . 1 ) 1 . PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 2nd day of June 1986 . &z't Va. Mayor ATTEST: APPROVED AS TO FORM: Ztu4�Ci y e Z d- � City Attorney n REVIEWED AND APPROVED: INITIATED AND APPROVED ---City A ministrat Directory of Development Services 2 . i t'y0 -�� UCH ^';-`` V� ( I � i�^•, `v v�,''/�� f'. � Via, i;� P C\ � ,, � / ��\t�� '(, v t^`^ \ I I �,' .✓ ,.� ice, \ oO.c s�rTAnon '�1;�` �'1+ �'� .• • „_,�`�'.� Ol_1 �C•� I 77tLAfllLYT PI.AM I VISITOR SERVING COMMERCIAL -----flA.MILTCN EXTENSION EXHIBIT A ' CONSERVATlOU ® NONCERTIFIED INDUSRTIAL EIIERGY PRCDUCTiON COAsrAL AREAS Kxrw=N 6FAC}I C41ORt" ft"4 G pEpJ1R mea IND. ENERGY PROD./ CONSERVATION Page 5 intensity resource protective activities including picnic and observation areas , nature trails and peripheral bike paths , informational signs or displays, and peripheral parking areas . Public access is encouraged and should be provided where possible . 3 . Industrial Energy Production The City has redesignated 84 . 5 acres between Newland Street and Magnolia Street as " Industrial Energy Production" . This designation includes the existing developed Edison Company power plant site and the adjacent storage tank area . The designation is intended to accommodate non-oil extraction related coastal dependent energy production facilities . Principal permitted uses include power plants , storage tanks , transmission lines , storage and maintenance yards, and ancillary buildings . 4 . Industrial Energy Production/Conservation The 17-acre vacant parcel adjacent to the Edison power plant has been redesignated as " Industrial Energy Production/Conservation" . In this case, a "Conservation" overlay has been applied to the underlying land use designation of " Industrial Energy Production" . This designation is intended to allow the existing wetland area to be protected and restored while not precluding the option of power plant expansion onto this site if no feasible less environmentally damaging alternative , such as an inland location , exists and if appropriate mitigation, including restoration of degraded wetlands in the area , is provided . Page 6 LAND USE PLAN RECOMMENDATION AND FINDINGS FOR CERTIFICATION I . RECOMMENDATION Following a public hearing, the Commission shall adopt the following resolution and related findings and declarations for the City of Huntington Beach Land Use Plan for the area of deferred certification between Beach Boulevard and the Santa Ana River mouth as resubmitted . MOTION I I move that the Commission certify in geographic part the Land Use Plan for the area of de erre certification between Beach Boulevard and the Santa Ana River mouth as resubmitted by the City of Huntington Beach. Resolution to Certify The Commission hereby certifies the resubmitted Land Use Plan for the area of deferred certification between Beach Boulevard and the Santa Ana River mouth of the City of Huntington Beach Local Coastal Program and finds for the reasons discussed below that the resubmitted Land Use Plan meets the requirements of and is in conformity with the policies of Chapter 3 (commencing with Section 30200 ) of the Coastal Act to the extent necessary to achieve the basic stated goals specified in Section 30001 . 5 of the Coastal Act ; that the resubmitted Land Use Plan contains a specific access component as required by Section 30500 ( a ) of the Coastal Act ; is consistent with applicable decisions of the Commission which shall guide the local government in their future actions under Section 30625 ( c ) of the Coastal Act ; and certification of the resubmitted Land Use Plan meets the requirements of Section 21080 . 5 ( d ) ( 2 ) ( i ) of the California Environmental Quality Act , as there are no further feasible alternatives or mitigation measures available which would substantially lessen any significant adverse impact which the Land Use Plan may have on the environment . II . FINDINGS FOR CERTIFICATION OF THE LAND USE PLAN A. Environmentally Sensitive Habitat Areas Page 7 Section 30240 ( a ) of the Coastal Act states that : Section 30240 ( a ) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values , and only uses dependent on such resources shall be allowed within such areas . ( b ) Development in areas adjacent to environmentally sensitive habitat areas. and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade such areas, and shall be compatible with the continuance of such habitat areas . Section 30233 provides in part : Section 30233 ( a ) The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes shall be permitted in accordance with other applicable provisions of this division, where there is no feasible less environmentally damaging alternative , and where feasible mitigation measures have been provided to minimize adverse environmental effects , and shall he limited to the following : ( 1 ) New or expanded port , energy , and coastal-dependent industrial facilities , including commercial fishing facilities . ( 2 ) Maintaining existing , or restoring previously dredged, depths in existing navigational channels, turning basins , vessel berthing and mooring areas , and boat launching ramps . ( 3 ) In wetland areas only, entrance channels for new or expanded boating facilities ; and in a degraded wetland , identified by the Department of Fish and Game pursuant to subdivision ( b ) of Section 30411 , for boating facilities if , in conjunction with such boating facilities , a substantial portion of the degraded wetland is restored and maintained as a biologically productive wetland . The size of the wetland area used for boating facilities , including berthing space , turning basins , necessary navigation channels, and any necessary support service facilities , shall not exceed 25 percent of the degraded wetland . ( 4 ) In open coastal waters , other than wetlands , 4n-1 --lino streams , estuaries, and lakes , new or expanded boating facilities and the placement of structural pilings for public recreational piers that provide public access and recreational opportunities. Page 8 ( 5 ) Incidental public service purposes , including but not limited to, burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines . ( 6 ) Mineral extraction, including sand for restoring beaches, except in environmentally sensitive areas . ( 7 ) Restoration purposes . ( 8 ) Nature study, aquaculture , or similar resource dependent activities . . . ( c ) In addition to the other provisions of this section, diking , filling , or dredging in existing estuaries and wetlands shall maintain or enhance the functional capacity of the wetland or estuary. Any alteration of coastal wetlands identified by the Department of Fish and Game, including , but not limited to , the 19 coastal wetlands identified in its report entitled , "Acquisition Priorities for the Coastal Wetlands of California" , shall be limited to very minor incidental public facilities , restorative measures, nature studv. . . if otherwise in accordance with this division. . . Section 30230 states that : Section 30230 Marine resources shall be maintained , enhanced, and where feasible , restored . Special protection shall be given to areas and species of special biological or economic significance . Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial , recreational , scientific , and educational purposes . Section 30231 states as follows : Section 30231 The biological productivity and the quality of coastal waters , streams , wetlands , estuaries , and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and , where feasible, restored through , among other means , minimizing adverse effects of waste water discharges and entrainment , controlling runoff , preventing depletion of ground water supplies and substantial interference with surface water flow, Page 9 encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats , and minimizing alteration of natural streams. Section 30411 ( b ) of the Coastal Act provides that : Section 30411 ( b ) The Department of Fish and Game , in consultation with the commission and the Department of Boating and Waterways , may study degraded wetlands and identify those which can most feasibly be restored in conjunction with development of a boating facility as provided in subdivision ( a ) Section 30233 . Any such study shall include consideration of all the following : ( 1 ) Whether the wetland is so severely degraded and its natural processes so substantially impaired that it is not capable of recovering and maintaining a high level of biological productivity without major restoration activities . ( 2 ) Whether a substantial portion of the degraded wetland, but in no event less that 75 percent , can be restored and maintained as a highly productive wetland in conjunction with a boating facilities project . ( 3 ) Whether restoration of the wetland ' s natural values, including its biological productivity and wildlife habitat features , can most feasibly be achieved and maintained in conjunction with a boating facility or whether there are other feasible ways to achieve such values . 1 . Wetlands The Commission generally considers wetlands , estuaries , streams , riparian habitats , lakes and portions of open coastal waters to be environmentally sensitive habitat areas because of the especially valuable role of these habitat areas in maintaining the natural ecological functioning of many coastal habitat areas and because these areas are easily degraded by human developments . Wetlands are highly diverse and productive . The combination of shallow and deep water , and the variety of vegetation and substrates produce far greater possibilities for wildlife feeding , nesting and resting than is found in less diverse areas . Individual wetlands may be inhabited by hundreds of species of birds , mammals , fish and smaller organisms . Migratory animals feed and rest in California ' s coastal wetlands in large enough numbers to make the wetlands invaluable habitat areas . Most waterfowl and shorebirds found in North America , such as ducKs , geese , sandpipers, and dunlines, are migratory . During Page 10 the fall and spring migrations, millions of these birds move along well -defined routes called flyways. The California coast , part of the Pacific Flyway , was assigned third highest priority ( out of a total of 33 areas nationally) for wintering habitat preservation by the U . S . Fish and Wildlife Service. Since wetlands are so valuable from both an economic and biologic standpoint , the Coastal Act , and many other Federal and state statutes and regulations , mandate governmental regulation of these areas . The Coastal Act requires that the biological productivity and the quality of coastal waters, streams, wetlands , estuaries , and lakes be maintained and, where feasible, restored . Section 30233 of the Coastal Act requires in part that the diking , dredging or filling of open coastal waters , wetlands , estuaries shall be permitted where there is no feasible less environmentally damaging alternative and where feasible mitigation measures have been provided and shall be limited to the uses enumerated in subsections ( a ) ( 1-8 ) . Significant wetland resources have been identified within the City ' s coastal zone as determined by the Commission in its previous actions on the City ' s certified in geographic part LCP . In 1982, the Commission certified the City ' s LUP excluding those areas identified as wetlands . The two non-certified wetlands areas are the Metropolitan Water District (MWD) parcel adjacent to the Bolsa Chica and the area from Beach Boulevard to the Santa Ana River ( Exhibit 2 ) . The Land Use Plan was denied for these areas based on land use designations which were inconsistent with Section 30233 and the energy policies of the Coastal Act . Historically , coastal estuaries and wetlands have been destroyed or disturbed by activities such as dredging for ports and marinas , diking from tidal action, filling to provide new land for development , and used as sumps for domestic sewage and industrial waste and deprived of rejuvenating freshwater inflow by water diversions . Of the original 197 , 000 acres of marshes , mudflats , hays , lagoons , sloughs and estuaries in California ( excluding San Francisco Bay ) , the natural productivity and open space values of 52% have been totally destroved by dredging and filling . Of California ' s remaining estuaries and coastal wetlands , 62 percent have been subjected to severe damage and 19 percent have received moderate damage ( California Coastal Plan) . Thus , less than 10% of California ' s original coastal estuaries and wetlands remain relatively undisturbed . It is for reasons such as these that the Coastal Act contains mandatory provisions for wetland protection and restoration including those wetlands which have been severely altered by human activities and therefore degraded . In fact , wetlands are the coastal resources that have been granted the greatest amount of protection in the Coastal Act . For example , there are several specific Coastal Act policies which require the maintenance of biological productivity and the quality of wetlands ( Section 20221 ) ; r,�?strict diking, filling and dredging of wetlands ( Section Page 11 30233 ) ; and provide for the restoration of wetlands ( Section 30231 , 30411 and 30607 . 1 ) . Thus , wetlands protection and restoration is one of the Coastal Act ' s major priorities . Of California ' s remaining coastal wetlands, southern California wetlands have been the most severely depleted. However , southern California ' s coastal wetlands still support hundreds of thousands of birds including dozens of species which migrate along the Pacific Flyway . Hence, according to Zedler ( 1982a ) , these areas take on international importance as feeding and resting grounds for species found from Alaska to Antarctica . Herons , egrets , gulls , terns , shorebirds, ducks , geese, coots, wading birds and rails can be seen in southern California coastal wetlands throughout most of the year . However , several of these bird species which use southern coastal wetlands are now endangered due, in large part , to the massive losses of wetland habitat . Approximately 75 percent of the estuaries and coastal wetlands in southern California have been destroyed or severely altered by man since 1900 . Two-thirds of the twenty eight sizable estuaries existing in southern California at the turn of the century have been dredged or filled ( California Coastal Plan) . These losses have driven several species of wildlife nearly to extinction. Endangered species which use the wetlands include five endangered birds . The California least tern (Sterna albifrons browni ) , the brown pelican ( Pelecanus occidentalis ca i ornicus ) , the peregrine falcon ( Falco Deregrinus anatum) , and the light- noted clapper rail ( Rallus longirostris levies are federally listed . The Belding ' s savannah sparrow ( Passerculus sandwichenis beldingi ) is state listed . The latter two species are residents of the salt marsh and absolutely depend on it for survival ( Zedler , 1982a ) . In addition , the aesthetic and open space value of southern California coastal wetlands is significant . Onuf et al . ( 1978 ) note that coastal wetlands probably support higher densities of big , active animals , especially birds , than any other major habitat type in the United States . The small size of most of the remaining southern and central California coastal wetlands , the low stature of the marsh plants , and the close proximity of many of these wetlands to densely populated areas allow easy viewing of a wide variety of birds in their natural setting . a . Resource Values of the Huntington Beach Wetlands In 1983 , the Department of Fish and Game ( DFG ) prepared , at the Commission ' s request , a report concerning the status of the Huntington Beach wetlands . The report was prepared pursuant to Section 30411 of the Coastal Act which provides for the study of degraded wetlands by the Department of Fish and Game in culisullaLiuo with the Commission and the Department of Boating and Waterways . Page 12 The Department of Fish and Game summarized its findings as follows : Based upon examination of historical mapping , existing biological data, and upon the definitions and criteria outlined herein, the Department finds that of the 162. 6 acres within the study area , 149 . 9 acres are historic wetland and 12 . 7 are historic upland ( Table 1 ) . We find that of the 149. 9 acres of historic wetland within our study area, 114 . 7 acres ( 76 . 5% ) continue to function viably as wetlands. The Department finds that all 114 . 7 acres of wetland identified are degraded pursuant to the definition established herein. However , we also find that 113 . 9 of these 114 . 7 wetland acres ( 99% ) provide either high or moderate habitat values to wetland-associated birds . Further , the Department finds that major restoration efforts would not be required to restore and enhance wetland values on 114 . 7 acres identified in this report . The DFG report discussed the historical importance of the Huntington Beach wetlands : The study area is a remnant of a once extensive wetland area which existed at the mouth of the Santa Ana River ( Figure 1 ) . This wetland was historically connected to Newport Bay by the meandering Santa Ana River . The present wetland ( 114 . 7 ac . ) is all that remains of approximately 2 , 000 acres of historic wetlands which existed upcoast ( northwest ) from what is now the Santa Ana River Flood Control Channel . This reduction in area of nearly 95% has occurred primarily due to the channelization of the Santa Ana River and other drainage courses and subsequently from encroachment of residential , commercial and industrial developments in the City of Huntington Beach . The study area has been formally classified as wetland by the State of California since a- least 1971 (Radovich 1980 ; Appendix 3 ) The report also included a description of the present status of the wetlands : There presently exist 114 . 7 acres of viably functioning wetlands in the study area . These wetlands are non-tidal in nature . They are primarily a combination of vegetated and non-vegetated wetland flats , and manifest various salinity regimes . Dominant plant species include pickleweed ( Salicornia virginia ) , alkali heath ( Frankenia grandifolia ) and slat grass Distichlis spicata ) in salt marsh areas; spiny rush ( Juncus acutus ) and bulrush ( Scirpus spp. ) in brackish water marsh areas; and cattail ( Tvpha spp. ) in freshwater marsh areas. Salicornia virginia an oblogate hvdrophyte, is clearly the predominant plant species in the study area . . . The invertebrate population provides a forage base for an Page 13 abundant and diverse complement of wetland-oriented bird species . At least 83 bird species have been observed in the Huntington Beach Wetlands ( Appendix 2 ) . Of the 83 species , 53 species are wetland-associated birds . Included among the species known to occur in the study area are the federally and state-listed endangered California least tern and the state-listed endangered Belding ' s savannah sparrow. Bird censuses . . . indicate that of the 114 . 7 acres of existing wetland in the study area 113 . 9 of these acres ( 99% ) provide either high or moderate habitat values for wetland-associated birds . Of the 12 . 7 acres of historic upland , 8. 7 acres adjacent to PCH and downcoast ( generally southeast ) from the power plant are composed of coastal dune habitat , willow thickets and transition vegetation, and are environmentally sensitive pursuant to Coastal Act Sections 30107 . 5 and 30240. These 8 . 7 acres provide desirable habitat diversity to the overall study area , and constitute approximately 35% of all remaining coastal dune habitat in northern Orange County ( the remaining roughly 65% being located primarily in the Bolsa Chica Ecological Reserve ) (See DFG 1982 ) . . . b . Land Use Plan Policies As noted above , the wetlands area in the City of Huntington Beach from Beach Boulevard to the Santa Ana River is part of the last remaining remnant of the once extensive salt marsh and estuary complex of the Santa Ana River which encompassed over 3000 acres . The area ' s primary resource value is as habitat for marsh dependent bird species . The area presently serves as a waterfowl wintering area , providing valuable nesting and feeding areas on the winter migration route . The wetlands provide a critical food source and breeding habitat for the endangered California least tern and the endangered Belding ' s savannah sparrow. In 1982 , in its previous action on the Huntington Beach LCP , the Commission certified the City ' s LCP in geographic part and denied certification in part for the two wetland areas within the City : the Metropolitan Water District ( MWD ) parcel adjacent to the Bolsa Chica and the area from Beach Boulevard to the Santa Ana River . The Commission found in its action on the LUP, the findings for which are hereby incorporated by reference , that : The LUP as resubmitted fails to conform to the Resource protection policies of the Act in the following significant areas : 1 ) The LUP fails to provide land use designations and standards to ensure protection and restoration where feasible of wetland resources identified consistent with the Coastal Act definition . Page 14 2 ) The LUP as resubmitted while referring to wetland as "potential " ( page 61 ) or "possible" (page 59 ) wetlands and acknowledging their identification by the Department of Fish and Game in a preliminary determination , designates wetland areas for uses not allowed by Section 30233 of the Coastal Act . The Commission further found that the land uses proposed for the wetland areas would conflict with the energy policies of the Coastal Act which address the siting and expansion of power plants and energy facilities . The Commission concluded that : The Plan as resubmitted would result in the filling of over 130 acres of wetland with an irreversible loss of habitat value and productivity and loss of habitat for endangered species . Further , the plan precludes higher priority coastal dependent uses on the MWD site and precludes potential restoration of wetland resources on that site. The Commission made similar findings in its original denial of the LUP in 1981 , the findings for which are hereby incorporated by reference . The City ' s LUP resubmittal for the area of deferred certification from Beach Boulevard to the Santa Ana River contains new land use designations for major portions of that area ; Exhibit 2 ) . The proposed land use designations include "Visitor-Serving Commercial " , "Conservation" , " Industrial Energy Production " , and " Industrial Energy Production/Conservation" . In addition , the LUP resubmittal includes the resubmittal of the Coastal Element policies including the environmentally sensitive habitat , visual resources , energy policies , etc . The "Conservation" and " Industrial Energy Production/Conservation" designations for 141 . 5 acres of wetland/coastal dune/upland habitat ( in conjunction with the environmentally sensitive habitat policies of the Coastal Element ) would provide protection for these environmentally sensitive habitat areas consistent with the environmentallv sensitive habitat and wetlands policies of the Coastal Act . The designations are consistent with these policies because: 1 ) they allow for the following kinds , location and intensity of land uses consistent with Section 30233 and 2 ) the land use designations and/or other policies provide for development meeting the other tests of Section 30233 - that there are no feasible , less environmentally damaging alternative and feasible mitigation is provided/required as well as the energy policies of the Coastal Act . The "Conservation" designation allows certain low intensity resource protective activities including picnic and observation areas , nature trails and peripheral bike paths , informational signs or displays , and peripheral parking areas . The " Industrial Energy Production/Conservation " designation is intended to allow the existing wetland area to be protected and restored while not precluding the option of power plant expansion onto this site if no feasible less environmentally damaging alternative and if appropriate mitigation is provided . The 141 . 5 acre figure reflects Page 15 the Department of Fish and Game 1983 Wetland Determination of 149 . 9 acres of historic wetland minus former ( not restorable ) wetland and upland habitat west of Beach Boulevard and a strip area along Pacific Coast Highway east of Beach Boulevard . C . Hamilton Avenue Extension The land use designations limit allowable uses in wetlands , however , the resubmitted LUP includes a provision for the extension of Hamilton Avenue from Newland Street to Beach Boulevard . The areas that would be bisected by this allignment of the extension have been identified in the Department of Fish and Game wetlands determination as restorable former wetlands and degraded saltmarsh/salt flat wetlands . The DFG has also determined that the affected areas support "Moderate" and "High" use by wetland-associated birds . The City states that an extension of Hamilton Avenue is needed to provide an alternative circulation route to Pacific Coast Highway . The extension would also , the City maintains , provide increased access to the coast for beach users and would improve public safety as it would serve as an alternative route to the beaches and downtown area for fire and emergency vehicles . The City' s proposal states that : The Hamilton extension will be constructed in such a way as to minimize impacts on the wetland . This includes raising the entire structure on pilings if necessary . Appropriate mitigation shall be provided . It is the City ' s intent that no net loss of wetland occur . Any wetland which is filled or reduced in productivity by the project will be replaced by restoring otherwise degraded or non-functioning wetland as close as feasible to the project site . In its previous actions on the LUP in 1981 and 1982 , the Commission noted that the proposed extension of Hamilton Avenue would result in the filling of identified wetland areas . The Commission also found that roads are not a permitted use for which filling of wetlands is permitted under Section 30233 of the Coastal Act , except as part of energy expansion allowed by Section 30233 and the energy policies of the Coastal Act . In its 1981 action, the Commission adopted a suggested modification ( and the City adopted the policy below as part of its Coastal Element ) which provided that no fill for road construction would be allowed in wetlands except as provided by Section 30260 for coastal dependent industrial uses and Sections 30262-30264 for allowable energy facilities and shall be limited only to access roads appurtenant to the facility to serve uses permitted by Sections 30260-30264 . Any proposed road also had to meet the other policy tests of having no feasible less environmentally damaging alternative and providing feasible mitigation . Page 16 The LUP resubmitted in 1982 incorporated policy modifications similar to the Commission ' s adopted suggested modifications. The new LUP policy ( 9e ) provides as follows : 9e . Prohibit all uses within the Least Tern nesting site on Huntington State Beach except those related to habitat restoration. Prohibit fill in any wetland areas for the purpose of road construction, except for roads required to serve uses allowed in wetlands pursuant to and consistent with Sections 30260-30264 for coastal dependent and energy uses . Also, if a project were approved pursuant to and consistent with Section 30233 ( a ) ( 3) , and a road was part of the approved project , such road would be permitted in portions of the severely degraded wetland where development is permitted. Any roads governed by this policy shall be limited to necessary access roads appurtenant to the facility, and shall be permitted only where there is no feasible less environmentally damaging alternative and where feasibility mitigation measures have been provided . It is significant to note that this policy was adopted prior to the final Department of Fish and Game Section 30411 wetlands determination report , which found that the wetlands in this area were not so severely degraded as to require major restoration . Projects approved pursuant to Section 30233 ( a ) ( 3 ) pertain only to wetlands identified as so severely degraded as to require major restoration . The Commission previously found that the policies and standards contained in the resubmitted LUP were consistent with the Coastal Act but denied the land use designations for the identified wetlands areas because they allowed filling of wetlands for uses not consistent with the Coastal act and would have resulted in significant loss of wetland and other environmentally sensitive habitat areas . The Commission certified environmentally sensitive habitat area policies for the geographic area excluding the wetlands areas , finding that the policies themselves were consistent with the Coastal Act . However , as the LUP was denied in geographic part , neither policies nor land use designations were certified for this area . Now, the City has resubmitted its certified environmentally sensi � ive habitat area policies along with new land use designations to comprise a resubmittal LUP for the geographic area denied certification by the Commission in 1982 . Policv 9e , as the Commission previously found , is consistent with the Coastal Act in that it would protect wetlands , allowing road extensions only as part of allowable coastal dependent or energy uses permitted by Section 30233 ( a ) ( 1 ) and only where there is no feasible alternative and where mitigation is provided . The LUP as resubmitted includes the extension of Hamilton Avenue which is not Page 17 I consistent with Policy 9e or Section 30233 of the Coastal Act as the Hamilton extension is not part of any coastal dependent or energy related project and is not one of the permitted uses of Section 30233 of the Coastal Act . . Of all the environmentally sensitive habitat areas mentioned specifically in the Coastal Act , wetlands and estuaries are afforded the most stringent protection. In order to approve a project involving the diking , filling , or dredging of a wetland or estuary , the Commission must first find that the project is one of the specific, enumerated uses set forth in Section 30233 . In addition , permitted development in these areas must meet the requirements of other applicable provisions of the Coastal Act . The activities and types of development permitted in wetlands, pursuant to Section 30233, are as follows: 1 . Port facilities 2 . Energy facilities 3 . Coastal-dependent industrial facilities, such as commercial fishing facilities 4 . Maintenance of existing or restoration of previously dredged depths in navigation channels, turning basins , vessel berthing and mooring areas, and boat launching ramps 5 . Incidental public service purposes which include , but are not limited to, burying cables and pipes , inspection of piers, and maintenance of existing intake and outfall lines 6 . Restoration projects 7 . Nature study , aquaculture , or similar resource-dependent activities 8 . In wetland areas only , entrance channels for new or expanded boating facilities may be constructed, except that in a degraded wetland, other boating facilities may be permitted according to the requirements .of Section 30411 9 . New or expanded boating facilities in estuaries The Commission has consistently found that protection of wetland resources is a high priority of the Coastal Act , and has denied development which would have resulted in the filling of wetlands , or conditioned projects to avoid filling of wetlands . In many previous actions , including the 1981 denial of the City ' s LUP, the 1982 certification of the LUP excluding the wetland areas , certification of the County of San Diego , San Dieguito segment LUP, and previous permit actions including A-328-78 ( Hawthorne ) the Commission made findings regarding the importance of protecting wetlands and related habitat . The Commission found in its review of the San Dieguito LUP that a specific policy which limited the type of use and development permitted in wetlands was protective of wetland resources consistent with Section 30233 and addressed concerns regarding road extension and widening projects adjacent to San Elijo and Batiquitos Lagoons . In A-156-79 (Carmel Valley Road ) , the Commission initially denied a proposed road widening and redligrimenc chat would have resulted in wetland fill . The Page 18 Commission later , however , approved the project which was intended to eliminate a dangerous curve situation after the project had been r,-,itfsignPd and modified to mitigate wetland fill to the maximum extent feasible . In previous actions on proposed road extensions through wetland areas , the Commission has also found that limited expansion of roadbeds and bridges necessary to maintain existing traffic capacity may be permitted only when no other alternative exists and when consistent with the other provisions of Section 30233 . Similarly, in this case , the Commission notes that the intent of the proposed Hamilton Avenue extension is to serve a public service that is as an alternate route to Pacific Coast Highway for emergency vehicles . Presently, emergency vehicles are hindered by the lack of alternate routes when Pacific Coast Highway is impassable due to congested traffic. The City intends to extend Walnut Avenue from the downtown to Beach Boulevard where it would meet the extended Hamilton Avenue . This would create a new cross-town axis along Walnut and Hamilton Avenues from the downtown to the Santa Ana River . The extended Hamilton Avenue in conjunction with the Walnut Avenue extension woul serve to enhance emergency vehicle traffic etween the downtown and the southeastern area of the city. In its action in 1984 on the Marina Del Rey/Ballona LUP of the County of Los Angeles LCP, the Commission approved the extension of Falmouth Avenue through an area of severely degraded wetlands proposed for restoration in the LUP. The Commission found that the extension was consistent with the requirements of Section 30233 ( a ) ( 7 ) of the Coastal Act as it was part of a restoration project and was the least environmentally damaging alternative for restoring the wetland as modified to be elevated on pilings . The suggested modifications to the LUP required that the road extension be elevated on pilings "to insure: maximum flow of water , movement of maminals and avian species and clearance to permit periodic maintenance . " The Commission based its decision partly on evidence supplied by the Department of Fish and Game ( DFG ) in a letter to the Commission . The DFG stated that the extension of the road in combination with an expanded wetland restoration program was "more protective of coastal wetland resources than the preclusion of the proposed extension and no wetland restoration . ' The DFG also expressed concern that without approval of the LUP including the Falmouth extension and the restoration plan proposed by the landowner , the use of the area for agricultural purposes would he expanded and thereby further diminish wetland habitat values . The Commission concluded that : The proposed extension of Falmouth Avenue through a portion of the degraded wetlands designated for restoration, is permissible as part of a restoration plan even though roads are not idPnrifiAri as a permitted use in Section 30233 of the Act . Page 19 The Commission ' s Interpretive Guidelines for Wetlands and Other Wet Environmentally Sensitive Areas (p. 14 ) declare that " additional flexibility will be allowed for .restoration projects located in wetlands which are degraded (as that term is used in Section 30411 of the Coastal Act . " The Guidelines go on to state (p . 24 ) that "restoration projects under this approach may include uses that are not permitted in Section 30233 if the project meets all of the other requirements of Section 30233 and 30411 . " The Commission notes that the there are significant differences between the Ballona wetlands and the Huntington Beach wetlands . One major difference between the two areas is the Department of Fish and Game wetland determinations prepared for each area . The DFG determined that the overall Ballona wetland system is severely degraded and requires a major restoration plan . The Huntington Beach wetlands , however , though determined to be degraded wetlands , were found by the DFG to be "not so severely degraded that major restoration efforts are require . " (emphasis added ) ( DFG Determination of the Status of the Huntington Beach Wetlands , February 4 , 1983 ) . The DFG found that 114 . 7 acres 76 . 5$ of the 149 . 9 acres of historic wetland "continue to functionally viably as wetlands" and major restoration was not necessary to restore and enhance wetland values . The Commission finds that the precise alignment of Hamilton Ave . can not be approved without the necessary environmenta documentation showing the leasT environmentally damaging feasible alternative is the chosen alternative . However , the Commission finds that there is a need to provide an alternative route paralleling Hwy 1 for public safety needs . The Commission further finds that such minimization of impacts shall include , at a minimum; ( 1 ) placing of the roadway in an alignment which is most protective of wetlan habitats , which may require the entire road to be constructed on pilings or other road designs such as bridging over the wetlands , ( 2 ) limiting the width of roadway by narrowing lanes and eliminating shoulders , and ( 3 ) requiring full mitigation for any impacted wetland . The Commission also finds that the EIR, which will need to be done before this project could occur , will need to adequately address the alternative alignments for Hamilton Ave . and will need to address the mitigation needs generated from each alternative . The City argues that the Commission has approved a number of roads , such as Falmouth Avenue , as part of wetland modification proposals , and that the extension of Hamilton would be consistent with these_ previous decisions . The Commission disagrees . In most of the specific examples where the Commission has approved construction within a wetland , the wetland was a "severely degraded wetland" ( e . g . Ballona and Bolsa Chica ) . Inherent in the determination that a wetland system is a "severely degraded wetland" is the associated Page 20 determination that is " is not capable of recovering and maintaining a high level of biological productivity without major restoration activities . " In the case of the Huntington Beach wetlands , the Department of Fish and Game has identified the wetlands as having extraordinarily high values for bird habitat . Indeed , the nesting intensity of the endangered Belding ' s savannah sparrow is so high in these areas that even enhancement activities are likely to be counterproductive . Thus, unlike the situation in the Ballona , Bolsa Chica , Batiquitos , Los Cerritos, and other wetlands , intervention is not essential to assure the maintenance of habitat values , and restoration efforts are likely to be slight . Although the City has indicated its intent to mitigate any wetland fill resulting from this project , the Commission is concerned about the practical problems of implementing wetland restoration efforts . In reviewing the proposal to fill approximately 110 acres in outer Long Beach Harbor , the Commission heard testimony about the practical problems involved in putting together wetland restoration projects and having them successfully completed . These problems are even more serious in an area like Orange County where the market has set the acquisition cost of potentially restorable land at extremely high levels. The practical problems of restoration are immense, as the Coastal Conservancy has found in its restoration planning efforts for these wetlands . There are not enough clearly defined uplands available to be able to assure direct mitigation . The City maintains that the Hamilton extension is needed as "an alternative circulation route to Pacific Coast Highway" and in this capacity would provide "visitor serving access to the beaches , as well as . . . an alternative route for non-visitor traffic . " The extension would also , the City states, provide a route for fire and emergency vehicles to the beaches and the downtown area . The Commission finds , however , that the Coastal Act does not permit fill in wetlands in order to enhance access to the coast . The Commission notes that Hamilton Avenue runs parallel to the coast and its extension would not perceivably enhance access from inland areas . The Commission is also concerned about the City ' s reference to " raising the entire structure on pilings if necessary . " and the provision of " appropriate mitigation" ( emphasis added ) . It is not clear who or what determines if pilings are "necessary" nor what exactly is "appropriate " mitigation . The City , although stating that the extension would serve emergency vehicles , has not demonstrated any need for the extension based on public safety concerns . There is also no discussion of feasible alternatives that would avoid wetland fill . Such alternatives could include rerouting the extension to avoid the wetlands , 'bridging" the wetlands area to prevent any fill for pilings , or a combination thereof . The City (liu JIJVJJJ oi �,�inative routings of the Hamilton extension in its Page 21 Anal sis Of Land Use Alternatives For The ' White Hole ' Areas ( Revised May The three alternatives included : construction on pilings for the length of the extension ( this alternative would involve the most fill) , 2) construction on pilings from Beach Boulevard to the tank farm ( thereby reducing wetland fill ) , and 3 ) no project . The alternatives discussed in the report did not include an extension which would not involve wetland fill such as an extension across the tank farm connecting to a bridge across the wetlands between the tank farm and Beach Boulevard . The Commission further notes that the resubmitted LUP does not clearly indicate which alternative was chosen or why. The discussion of the extension in the LUP is vague and general in nature . As discussed above, Section 30411 of the Coastal Act allows uses in severely degraded wetlands formally identified by the DFG that would not be permitted pursuant to Section 30233 of the Coastal Act if the project meets all of the other requirements of Section 30233 and Section 30411 . Section 30411 states, in part , that any DFG study of a degraded wetland shall include consideration of : ( 1 ) Whether the wetland is so severely degraded and its natural processes so substantially impaired that it is not capable of recovering and maintaining a high level of biological productivity without major restoration activities . The Commission notes that the DFG has , pursuant to Section 30411 , formally determined that the Ballona wetlands are severely degraded and incapable of recovering and maintaining a high level of biological productivity without major restoration efforts . In contrast , the DFG made findings related to Section 30411 for the Huntington Beach wetlands which stated that major restoration efforts are not required for the existing wetlands . The DFG found that : These wetlands could easily be enhanced by reestablishing controlled tidal flushing due to their existing low elevation . . . , their immediate adjacency to the tidal waters of the flood control channel , and the demonstrated ease and efficiency with which this water may be used for restorative purposes . The Commission further finds that feasible mitigation measures must be provided for permitted wetland fill projects in order to minimize adverse environmental effects of the project . The Land Use Plan resubmittal provides , as noted above, that the Hamilton .venue extension will minimize impacts on the wetlands . The LUP 31so states that the minimization of impacts on the wetlands includes raising the entire structure on pilings , if necessary , and that appropriate mitigation shall be provided . The LUP concludes that : I Page 22 It is the City ' s intent that no net loss of wetland occur . Any wetland which is filled or reduced in productivity by the project will be replaced by restoring otherwise degraded or non-functioning wet an as close as easible to the project site . The Commission finds that it is only with this guarantee by the City that no net loss of wetlands will occur as a result o this project , that the project will maintain or enhance the unctional capacity of the wetlands and that mitigation measures will be provided to minimize the adverse impacts of the project that the Commission can find the proposed Hamilton Avenue extension consistent with the provisions of Section 3 233 of the Coastal Act . The Commission finds , therefore, that though the Falmouth Avenue extension was found by the Commission, in consultation with the Department of Fish and Game, to be consistent with Section 30233 and Section 30411 of the Coastal Act, no such grounds exist in the case of the proposed Hamilton Avenue extension . The Huntington Beach wetlands, in contrast to the Ballona wetlands , are not so severely degraded that major restoration efforts are required. The Falmouth extension was found consistent with Sections 30233 and 30411 as it was part of a major restoration plan for a severely degraded wetland . These findings can not be made for the Hamilton extension . The Commission further finds , therefore , that for the reasons discussed above , the Land Use Plan is inconsistent with the environmentally sensitive habitat , marine resources , and wetland policies of the Coastal Act . The Commission notes that the resubmitted LUP designates a seven acre strip along Pacific Coast Highway between Beach Boulevard and Newland Street as "Visitor-Serving Commercial " . This area has been determined by the Department of Fish and Game in its 1983 Determination of the Status of the Huntington Beach Wetlands to be upland and former wetlands which is not restorable . The proposed visitor -serving uses would not therefore involve any fill of wetland . The visitor-serving designation is appropriate as the site is located at the terminus of the major access route ( Beach Boulevard ) from inland areas to the beach . The Commission finds , therefore , that the land use designation of "Visitor-Serving Commercial " , proposed for a seven acre strip along Pacific Coast Highway , is consistent with the environmentally sensitive habitat , wetland, and punlic access policies of the Coastal Act . Page 23 III . FINDINGS FOR SUGGESTED MODIFICATIONS A. Environmentally Sensitive Habitat Areas 1 . Wetlands Of all the environmentally sensitive habitat areas mentioned specifically in the Coastal Act , wetlands are afforded the most stringent protection. In order to approve a project involving the diking , filling , or dredging of a wetland, the Commission must first find that the project is one of the specific, enumerated uses set forth in Section 30233 of the Coastal Act . In addition , permitted development in these areas must meet the requirements of other applicable provisions of the Coastal Act . The Commission has consistently found that protection of wetland resources is a high priority of the Coastal Act , and has denied development which would have resulted in the filling of wetlands (except for permitted uses or where the development was part of a major restoration plan ) or conditioned projects to avoid filling of wetlands . The Commission finds that , for the reasons discussed above in the findings for denial of the LUP, the proposed Hamilton Avenue extension is not a permitted use allowing fill of wetlands pursuant to Section 30233 of the Coastal Act . The Commission finds that only as modified to delete the proposed Hamilton Avenue extension as proposed would the resubmittal LUP be consistent with the wetlands and environmentally sensitive habitat policies of the Coastal Act . The Commission further finds , therefore , that the Land Use Plan , as modified , conforms with Section 30233 and is consistent with the environmentally sensitive habitat , marine resources , and wetland policies of the Coastal Act . V . ENERGY FINDINGS Section 30260 of the Coastal Act provides : Section 30260 Coastal-dependent industrial facilities shall be encouraged to locate or expand within existing sites and shall be permitted reasonable long-term growth where consistent with this division . However , where new or expanded coastal-dependent industrial facilities cannot feasibly be accomodated consistent with other policies of this division , they .may nonetheless be permitted in accordance with this section and Section 30261 and 30262 if ( 1 ) alternative locations are infeasible or more environmentally damaging ; ( 2 ) to do otherwise would adversely affect the public welfare; and ( 3 ) adverse environmental effects are mitigated to the maximum extent feasible . Page 24 Section 30264 of the Coastal Act states as follows : Section 30264 Notwithstandinq any other provision of this division, except subdivisions (b ) and ( c ) of Section 30413, new or expanded thermal electric generating plants may be constructed in the coastal zone if the proposed coastal site has been determined by the State Energy Resources Conservation and Development Commission to have greater relative merit pursuant to the provisions of Section 25516 . 6 than available alternative sites and related facilities for an applicant ' s service area which have been determined to be acceptable pursuant to the provisions of Section 25516. A. Power Plant Siting and Expansion 1 . Background The Coastal Act and the Warren Alquist Act ( Energy Commission Legislation ) provide a combined approach to power plant siting within the coastal zone with the California Energy Commission given the overall permit authority for power plant siting within the state . other state and local agencies participate in the Energy Commission siting proceedings as interveners . However , the Coastal Commission has a special role with regard to siting power plants in the coastal zone . The following discussion describes the Commission role relative to the Energy Commission and the need for adequate policies in the LUP to assure that coastal protection policies are implemented during power plant siting procedures . 2 . Areas Unsuitable for Power Plant Sitinq The Coastal Act ( Section 30413 ( b ) ) requires the Commission to "designate" areas where the construction of an electric power plant would prevent achievement of the objectives of the Coastal Act . The Energy Commission cannot approve the construction or operation of any thermal Dower plant in an area that has been designated by the Commission in this process . Section 30413 (b ) requires that the Commission not designate specific locations which are presently used for power plants or surrounding areas that could be used for " reasonable expansion" of the facilities . 3 . Power Plant Siting Proceedings Whenever the Energy Commission exercises its siting authority and undertakes proceedings for the possible location of a power plant within the coastal zone, the Coastal Commission prepares a specific report on the proposal . The Commission prepares this report for rhP first Gtane of the siting process where several sites are Page 25 evaluated and one or two are ranked and granted conceptual approval ( Notice of Intention , NOI ) , and during the actual permit or certification process for one site ( Application for Certification AFC) . The Commission report includes an analysis of the potential impacts of the proposed project and possible methods to mitigate the impacts. The Energy Commission must implement the recommendation included in the report unless to do so would result in greater environmental damage or would not be feasible. 4 . Issues Relating to the Huntington Beach Power Plant Areas Designated as Not Suitable As part of the Commission ' s adopted Power Plant Siting Study, "Designation of Coastal Zone Areas Where Construction of an Electric Power Plant Would Prevent Achievement of the Objectives of the California Coastal Act of 1976" , Nov. 1979 ) the Commission has designated some of the property south of the Huntington Beach Power Plant as unsuitable for siting because of valuable wetland habitat . The designated wetland system extends south of the existing Huntington Beach Power Plant as discussed in this report . However , the northwest portion of the wetland was not designated as unsuitable so that reasonable expansion of the facility would not be precluded by the designations . (This non-designation of the wetland area in Huntington Beach was not based on resource value or suitability for siting, but rather once requirements of the Act that reasonable expansion not be precluded. ) The power plant presently has room to expand into the mud dump area north of the Talbert Channel rather than into the wetland . As stated previously, the Commission must assure that reasonable expansion of the power plant is not precluded by the power plant resource protection designations . 5 . Edison Notice of Intention The Commission in October 1978 unanimously adopted a report on the Edison Combined Cycle Power Plant Notice of Intention concerning the proposed expansion of the existing Huntington Beach Power Plant facility . The Commission found that the most serious impacts of the proposed power plant expansion would be the filling of the adjacent wetland and the associated environmentally sensitive habitat . The resource value of this area has been discussed above . The Commission found that the area inland of the existing facilities could provide a feasible less environmentally damaging alternative location for expansion of the Huntington Beach facility . Section 30233 of the Coastal Act mandates that energy facilities can only be sited in wetlands if there is no feasible less environmentally damaging alternative, if the functional capacity of the wetland is maintained or enhanced, and if mitigation measures have been provided to minimize the adverse environmental effects . The Commission report directed the Energy Commission to analyze and reach conclusions regarding the feasibility of power plant construction and the potential Page 26 environmental damages associated with the use of the inland area in place of the wetland . The report stated that if such conclusions of feasibility could be reached , then the expansion should occur on the inland area thus avoiding or minimizing the use of wetland areas for proposed power plant facilities . If expansion could only occur on the wetland adjacent to the existing power plant and northwest of Magnolia Street the Commission report than recommended that Edison be required to acquire and restore the wetlands to the south of the affected area . Additionally_ a permit ( A-342-78 Sand Dollar ) for a 9 lot industrial subdivision was denied during this period because of the possibility of using the inland property for expansion of Edison instead of wetland should the Energy Commission choose Huntington Beach from the four sites . However , when the proposed expansion was not approved for Huntington Beach, the coastal permit was issued , releasing the inland property for development . The existing mud dump however, still remains a potential area available for energy facility expansion . B . Previous Commission Findings The Commission found in its 1981 action on the City' s LUP that the resubmitted plan failed to conform to the energy and resource protection policies of the Coastal Act in relation to power plant siting and expansion . The Commission found that the proposed " Industrial Energy Production" land use designation did not provide standards which require the expansion of the power plant facilities in feasible less environmentally damaging alternative sites first , such as the mud dump and the designation also failed to incorporate standards to ensure protection of wetland resources in conjunction with allowable energy expansion if alternative inland sites are infeasible . In its suggested modifications , the Commission recommended that the designation of the area including and south of the power plant to the Santa Ana River be changed from "Visitor Serving Commercial" and " Industrial Energy Production" to " Conservation/Industrial Energy" . The Commission further found that power plant facilities should be prohibited in the area southeast of Magnolia Street as specified in the power plant siting study . The suggested modifications contained three policy modifications which development within the area designated "Conservation/Industrial Energy" would be subject to : 1 . Such uses shall be permitted consistent with other provisions of the LUP only where there is no feasible, less environmentally damaging alternative and where maximum feasible mitigation measures have been provided to minimize adverse environmental effects , and the functional capacity of the wetland is maintained or enhanced . Page 27 2 . As a condition precedent to any energy facility expansion or development into the wetlands south of the power plant and north of Magnolia Street energy facility expansion inland to the Mud Dump must be undertaken or the infeasibility of doing so demonstrated . The determination of infeasibility will be made by the Energy Commission during or before the Notice of Intention Proceedings. 3 . If further expansion or development of power plant facilities and necessary accessory facilities on the inland site is infeasible or causes greater environmental damage as determined in #2 above , then such power plant expansion may be permitted north of Magnolia Street provided that not less than two and one half acres of wetlands south of Magnolia are permanently protected by conservation easements , dedications or other similar mechanisms for each acre of wetlands filled for development , and that a program acceptable to the Dept . of Fish and Game is implemented to assure long term habitat enhancement or restoration of these protected wetlands . Vehicular access shall be prohibited in conservation easement areas. The Commission concluded that the suggested modifications were necessary in order to provide for a reasonable expansion of the existing power plant consistent with the protection of wetland resources . The first priority for siting power plant facilities , the Commission found, would be at any available inland site . The Commission further found that the City ' s LUP should contain conditions for energy expansion into wetlands which would ensure specific mitigation and maintenance of the functional capacity of the wetland . In its 1982 action certifying the LUP in geographic part , the Commission denied the portions of the LUP which applied to the wetlands areas of the City , i . e . the MWD parcel and the Beach Boulevard to Santa Ana River area . The findings for denial in geographic part concentrated on two policy areas : energy and environmentally sensitive habitats . In regard to energy , the Commission found that : The LUP as resubmitted proposes no modifications to the plan as it relates to land use designations on the parcels adjacent to the existing thermal power plant . As the Commission found in its previous action on the LUP the proposed land use designation , " Industrial Energy Production" fails to provide specific standards for expansion of power plants and mitigation for such expansion . The Commission found that the proposed land use designation of " Industrial Energy" and other LUP policies did not conform with the policies of chapter 3 of the Coastal Act and were not consistent Page 28 with previous Commission findings for the Edison Notice of Intention (NOI ) or the Commission power plant study designations . In order to find the proposed land use designations consistent with the Coastal Act , the Commission determined that : 1 . The land use designations must specify permitted uses and such uses should not preclude reasonable expansion of the existing Huntington Beach Power Plant as indicated in Section 30413 ( b) of the Coastal Act . 2 . The land use designations must reflect the previous Commission findings that power plant expansion priority should be given to the area inland of the Talbert Channel , and, conditions of and mitigation measures for an energy expansion into wetlands must be provided consistent with the mandatory provisions of Section 30233 and the energy policies of the Coastal Act . 3 . The land use designations must protect wetland areas which are not required for reasonable expansion of the existing Huntington Beach Power Plant , consistent with Section 30233 of the Act and Commission findings of the power plant siting study. C . Findings on the Resubmittal of the LUP for the Wetlands Area from Beach Boulevard to the Santa Ana River Regarding Energy Expansion The City in its resubmittal of the LUP has redesignated a 17-acre parcel adjacent to the Edison power plant as " Industrial Energy Production/Conservation" . A "Conservation" overlay has been applied to the original land use designation of " Industrial Energy Production" . The intent of the overlay as explained in the resubmittal is : . . . to protect certain unique or environmentally sensitive areas without precluding other options which may be allowed under the Coastal Act . Conditions to be imposed by the overlay include mitigation measures to maintain or enhance the functional capacity of the wetland . In the "Area-By-Area Discussion" section of the Land Use Plan , the City further describes the intent of the " Industrial Energy Production/Conservation" designation as follows : The designation is intended to allow the area to serve as a Conservation area for the short term, but be available for possible future expansion of the power plant , if necessary , to the long term, provided that there is no feasible , less environmentally damaging alternative, and appropriate mitigation is provided . Page 29 The Commission ' s concerns as discussed above include provision for the reasonable expansion of the power plant and protection of identified wetland areas . The new land use designations for the area between Beach Boulevard and the Santa Ana River address these concerns. The proposed " Industrial Energy Production/Conservation" designation is protective of wetland resources on the parcel adjacent to the power plant but also does not preclude the expansion of the plant into that area if it is deemed that "there is no feasible, less environmentally damaging alternative and appropriate mitigation is provided . " The Commission notes that feasible less environmentally damaging alternatives include power plant expansion inland of the Talbert Channel . The overlay requires that conditions on future development , i . e, power plant expansion, include mitigation measures to maintain. or enhance the functional capacity of the wetland. The Commission notes that in previous actions where wetland fill has been approved for permitted uses, such projects were required to restore wetlands, often at ratios of 2/1 or greater , in order to ensure that no net loss of wetland occurred . The City ' s "Conservation" overlay recognizes the need for wetland restoration by requiring conditions that include mitigation measures which maintain or enhance the functional capacity of the wetland. The Commission finds , therefore, that the "Conservation" designation for the area south of the Edison plant and the adjacent 17-acre " Industrial Energy Production/Conservation" designated parcel is consistent with the Commission ' s 1982 finding that the proposed land use designation for the area not required for reasonable expansion of the power plant must protect wetland areas . The Commission finds , therefore , that for the reasons discussed above the land use designations proposed in the resubmitted LUP are consistent with the energy and wetland policies of the Coastal Act . VI . PUBLIC ACCESS FINDINGS Sections 30001 . 5 , 30210, 30211 , and 30214 of the Coastal Act provide that maximum access shall be provided , and that development shall not interfere with the public ' s right of access to the sea where acquired through use or legislative authorization . Section 30212 further requires that public access from the nearest public road to the sea shall be provided in new development , and Section 30214 provides that requirements for public access take into account the time, place and manner of the access . A specific public access component for Huntington Beach was certified by the Commission on November 17 , 1982 as part of the City ' s certified in geographic part LUP. The City has included the Coastal Flement , which contains the certified public access Page 30 policies and standards, as part of the resubmittal . The Commission found in its 1982 action , the findings for which are hereby incorporated by reference , that the LUP maximized public access consistent with Sections 30210, 30211 , and 30214 of the Coastal Act . The area governed by the resubmittal LUP is bounded by Beach Boulevard , the Santa Ana River , and Pacific Coast Highway and does not include any shoreline frontage . The area does , however , contain environmentally sensitive habitat areas, i . e. wetland , coastal dune , and upland habitats . The certified Coastal Element contains a public access policy in the "Environmentally Sensitive Habitats" section which states as follows: 6 . 2 . 4 Public Access In coordination with the aesthetic and biological enhancement of the wetlands , the City encourages low-impact public access to allow nature study and enjoyment of amenities . The City will investigate strategies to provide boardwalks , peripheral trails , interpretive exhibits and other educational facilities in or adjacent to coastal wetlands so long as such activities do not significantly disrupt any habitat values or impair the viability of the ecosystem. The Commission finds , therefore , that the resubmitted LUP contains public access policies which maximize public access consistent with Sections 30210 , 30211 , and 30214 of the Coastal Act . The Commission further finds that the resubmitted LUP provides for public access in environmentally sensitive habitat areas when consistent with protection of the habitat . VII . OTHER COASTAL ELEMENT POLICIES As noted above , the City has resubmitted the certified Coastal Element as part of the LUP resubmittal for the area of deferred certification between Beach Boulevard and the Santa Ana River . The Coastal Element includes policies regarding public access ( see previous section ) , energy ( see section V) , visual resources , environmentally sensitive habitats/diking dredging and filling , recreation and visitor-serving facilities , hazards , new development , water and marine resources , and shoreline structures . The Commission in its action certifying the LUP in geographic part made findings as to the consistency of these policies with the Coastal Act . Those findings are hereby incorporated by reference . The Commission finds , therefore , that as applied to the geographic area from Beach Boulevard to the Sant. Ana River , the policies referenced above are consistent with Sections 30210 , 30211 , 30214 , 30222 , 30250 , 30251 , 30232 , 30262, 30260 , 30233 , 30240 , 30253, 30235 , 30230 , and 30231 of the Coastal Act because as found in the r'nmmi c_cinn ' c nrciii nlis action , they : Page 31 1 ) assure access consistent with the Coastal Act provisions to maximize public access ( Sections 30210 and 30211 ) 2 ) assure visitor facilities will be provided consistent with Section 30220, 30221 and 30222 3 ) provide policies to protect wetland and other environmentally sensitive habitat area and assure that adjacent development will not significantly degrade resources ( Sections 30233 , 30230, 30231 , and 30240 ) 4 ) provide for energy development consistent with Sections 30232 , 30262, and 30260 5 ) minimize risks and assure safety and structural stability of new development consistent with Section 30253 6 ) assure access consistent with resource protection including visual access to scenic resources (Section 30251 ) 7 ) protect water and marine resources by controlling runoff ( Sections 30230 and 30231 ) and protection against spills (Section 30232 ) VIII . CEQA FINDINGS 1 . Consistency with CEQA Pursuant to SB 1873 , which amended the California Environmental Quality Act , the Coastal Commission is the lead agency in terms of meeting California Environmental Quality Act ( CEQA) requirements for local coastal programs . In addition to making a finding that the LUP is in full compliance with CEQA, the Commission must make a finding that the least environmentally damaging feasible alternative is chosen . Section 21080 . 5 (d ) ( 2 ) ( i ) of the Public Resources Code requires that the Commission not approve or adopt an LCP : . . . if there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse impact which the activity may have on the environment . The three alternatives considered by the City included various ratios of development to open space conservation . Alternative One was the least intensive in terms of development and designated approximately 124 acres of "Conservation" area and five acres for "Visitor -Serving Commercial " use . Alternative Two featured 78 acres of "Conservation" , ten acres of "Visitor-Serving Commercial " , three acres of "General Commercial " , and 38 acres of " Medium Densitv Residential " . Alternative Three was the most intensive Page 32 proposal with only 27 acres of "Conservation" , ten acres of "Visitor -Servinq Commercial " , five acres of "General Commercial " , 74 acres of " Medium Density Residential " , and 13 acres of "Office" . Ail three alteratives designated 17 acres adjacent to the Edison power plant as "Conservation/Industrial Energy Production" . Section 30233 of the Coastal Act outlines permitted uses for which fill of wetlands may be permitted. Development is permitted in wetlands only for certain uses and only when there is no feasible less environmentally damaging alternative and mitigation measures have been provided to minimize adverse environmental effects . Alternatives Two and Three would result in a net loss of wetland and therefore raise questions of inconsistency with Section 30233 of the Coastal Act . Residential , general commercial , office and visitor-serving uses are not uses for which fill is permitted in wetlands . The City has resubmitted a Land Use Plan ( for the area of deferred certification from Beach Boulevard to the Santa Ana River ) which essentially adopts the land use designations proposed in the most environmentally protective alternative reviewed by the City , Alternative One . CEQA requires that the Commission make findings that the least environmentally damaging feasible land use alternative has been incorporated into the LCP, and that there are no feasible mitigation measures available that could substantially reduce adverse environmental impacts . The Commission finds , for the reasons discussed in this staff report , that the resubmitted Land Use Plan is the least environmentally damaging feasible land use alternative and that there are no feasible mitigation measures available that could substantially reduce adverse environmental impacts . The Commission further finds , therefore , that the resubmitted Land Use Plan is consistent with Section 21080 . 5 ( d ) ( 2 ) ( i ) of the Public Resources Code. 1731A M E M O R A N D U M FREILICH, STONE, LEITNER & CARLISLE TO: Gail Hutton, Mike Adams FROM: Katherine E. Stone, Margaret A. Sohagi SUBJECT: Huntington Beach Wetlands DATE: September 26, 1989 cc: 1. Authorize formation of wetlands coalition; 2 . Adopt the Coastal Conservation zoning; 3 . Adopt administrative ClaimsAfor takings and wetland designation; / I 4 . Adopt framework for TDR program; 5 . Adopt intention to prepare specific plan; 6 . Hire wetlands consultant (Mike ?McLaughlin to facilitate coalition) ; and 7 . Continue retention of Richard R. Terzian, Katherine E. Stone and Margaret A. Sohagi on an hourly basis . KES/XUTADAM.MEA':cg 9420. 2--9421 coastal dependent uses or to protect existing struc- tures or public beaches in danger from erosion and that are designed to eliminate or mitigate adverse impacts on local shoreline sand supply T. Trails (bicycle or jogging ) and support facilities V. Volleyball net supports (Ord. 2862, 2 Oct 86 ; Ord . 2700, 7/84; Ord . 2658, 12/83; Ord . 1564, 4/7.0 ; Ord . 495, 6/46) 9420 . 2 Maximum height . Maximum height shall be twenty ( 20) feet except for lifeguard towers or other facilities necessary for public safety. (Ord . 2862, 2 Oct 86; Ord . 2658, 12/83) 9420 . 3 Parking . Parking shall not be required for new structures unless such construction displaces existing parking. Displaced parking shall be replaced on a one-for-one basis in an area that would not result in the loss of recrea- tional sand . Parking shall comply with the standards outlined in Article 960. ( Ord . 2862, 2 Oct 86; Ord . 2658, 12/83) 9420. 4 Location requirements . ( a) Concession buildings shall be located a minimum of one thousand ( 1 ,000) feet apart . (b) Beach concession stands, boat loading/unloading areas, park offices, public restrooms, dressing rooms and showers shall be located within or immediately adjacent to paved parking or access areas . ( Ord . 2862, 2 Oct 86 ; Ord . 2658, 12/83) 9420 . 5 Signs . Nonilluminated generic information or identification signs shall be permitted subject to approval by the design review board . (Ord . 2862, 2 Oct 86 ; Ord . 2658 , 12/83) 9421 General provisions--Water recreation district . The purpose of the WR district is Lo implement the general plan land use designation of open space water ; and to provide for the preservation and enhancement of the existing and future recreation potential of tide and submerged lands in keeping with the Huntington Beach coastal element and the public trust provisions for commerce, navig.ition and fisheries . All other applicable cicy, county, state and federal regulations shall be met prior to engaging in anj activity within this district . ( Ord . 2862, 2 Oct 86; Ord . 2659, 12/83) 7/87 9421 . 1--!)422 9421 . 1 Permitted uses . ( a) The following uses shall be `- permitted : B . Beaches P. Private boat ramps, slips, docks, cantilevered decks, windscreens and boat hoists in conjunction with adjacent single family dwellings Public boat ramps and piers ( b) Conditional use permit . The following public and semipublic uses shall be permitted subject to the approval of a conditional use permit by the planning commission: B . Boat related activity Boat slips D . Docks M. Marine fueling docks S . Sight-seeing vessels Sport fishing W . Water taxi service (Ord . 2862, 2 Oct 86 ; Ord. 2752, 4/85; Ord . 2704, 7/84; Ord . 2659, 12/83) 9421 . 2 Development standards . ( a) No use shall be sited or designed so as to obstruct public access to any sandy beach or public use area . ( b ) No deck or structure shall extend more than five ( 5) feet over or in front of any bulkhead in any channel except for a landing or brow for access to a gangway for a dock . No structure shall extend beyond ;:he bulkhead in an area identi- fied as environmentally sensit ve such as, but not limited to, eelgrass beds and mudflats . ( Ord . 2862, 2 Oct 86; Ord . 2752, 4/85 ; Ord . 2704 , 7/84 ) 9422 General provisions--coastal conservation district . The purpose of the coastal conservation district is to imple- niont the general pian land use designation of open space con- ;ervation, and pr,)vi ,!e For protection, maintenance, restoration and enhancement cat wetlands and environmentally sensitive habi - tat areas located within the coastal zone while permitting appropriate land uses . (Ord . 2888, 31 Dec 86 ; Ord . 2862, 10/86) 7/87 9422. 1--9422. 3 9422 . 1 Definitions. The following words and phrases shall be construed as defined herein unless the context clearly indi- cates otherwise : (a ) Energy facility shall mean any public or private processing, producing , generating, storing, transmitting , or recovering facility for electricity, natural gas, petroleum, coal , or other source of energy. (b) Environmentally sensitive (habitat ) area shall mean a wetland or any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or .role in an ecosystem and which could be easily disturbed or degraded by human activities and develop- ments. ( c) Feasible shall mean capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, social , and technological factors. (d) Functional capacity ,hall mean the ability of an environmentally sensitive area to be self-sustaining and to maintain natural species diversity. ( e) Significant disruption shall mean having a substantial adverse effect upon the functional capacity . ( f ) Wetland shall mean lands within the coastal zone which may be covered periodically or permanently with shallow water and include salt water marshes, swamps, mudflats and fens . (Ord . 2888, 31 Dec 86; Ord . 2862, 10/86) 9422. 2 Coastal conservation suffix (-CC) . There is hereby established the suffix ( -CC) to be appended to any base district to denote and protect environmentally sensitive areas . Such suffix shall take precedence over any other district designation. (Ord . 2888, 31 Dec 86) 9422 . 3 Coastal conservation suffix--Removal of . Prior to removal of the coastal conservation suffix ( -CC) , the following findings shall be made : ( a ) That the underlying district designation is consistent With the coastal element of the general plan of the city of Huntington Beach; ( b ) That the proposed removal of the suffix is in ac- 7/87 9422. 4--94?2 . 6 cordance with the policies, standards and provisions of the California ,Coastal Act; and ( c) That there is no feasible, less environmentally damaging alternative site for any proposed land use or development which may be allowed under California Public Resources Code sections 30233(a) ( 1) and 30264. (Ord. 2888, 31 Dec 86) 9422. 4 Uses generally . The uses set out in this article shall only be allowed where there is no feasible, less environ- mentally damaging alternative and where practical mitigation measures have been provided. ( Ord . 2888, 31 Dec 86; Ord. 2862, 10/86) 9422 . 5 Use permit required . The following uses shall be permitted in the coastal conservation district upon approval of a use permit by the board of zoning adjustments : ( a) Incidental public service projects such as, but not limited to, burying cables and pipes. ( b) Maintenance of existing streets and utility structures . (Ord . 2888, 31 Dec 86; Ord. 2862, 10/86) 9422 . 6 Conditional use permit required . The following uses may be permitted upon approval of a conditional use permit by the planning commission : ( a ) New or expanded energy and coastal dependent industrial facilities . ( b) Diking , dredging and filling necessary for the protection, maintenance, restoration or enhancement of the area ' s functional capacity as a habitat . ( c) Provision for existing flood control facilities where the primary purpose is to maintain existing capacity, necessary for public safety or to protect existing development in the flood plain . No maintenance activities shall be permitted which have the effect of draining wetlands . Such maintenance activities may include maintenance dredging of less than 100 , 000 cubic yards in a twelve-month period; lining of in-place artificial channels; increasing the height of existing levees; changes in the cross sEction of the interior channel to accommodate the aesi3n capacit} of channels when no widening of the top dimensions or widening of the outer levee is required . 7/87 9422 . 7--9422 . 8 (d ) New flood control facilities in conjunction with plans where necessary for public safety and to protect existing de- velopment in the flood plain . (e) Mineral extraction, including sand for beach restora- tion except in environmentally sensitive areas . (f) Pedestrian trails and observation platforms for pas- sive nature study, including bird watching and the study of flora and fauna . Such uses may be located within an environ- mentally sensitive habitat area provided that they are immedi- ately adjacent to the area ' s peripheral edge . (g ) Maintenance of existing or restoration of previously dredged depths of navigational channels, turning basins, vessel berthing and mooring areas, and boat launching ramps . (h) Entrance channels for new or expanded boating facili- ties in a wetland area may be permitted . In a degraded wet- land, identified by the state department of fish and game pur- suant to California Public Resources Code section 30411 (b) , such facilities may be permits ediif—a'su stantial portion of the degraded wetland is restored and maintained as a biolog- ically productive wetland . The maximum area of the wetland used for boating facilities, including berthing space , turning basins, necessary navigation channels, and any necessary sup- port service facilities, shall be twenty-five ( 25% ) percent of the total degraded wetland area . ( i ) Nature study, aquaculture, or similar resource dependent activities. (Ord. 2888, 31 Dec 86; Ord. 2862, 10/86 ) 9422 . 7 Prohibited uses . Any use or structure not ex- pressly permitted shall be prohibited . (Ord . 2888, 31 Dec 86 ; Ord . 2862 , 10/86) 9422 . 8 Required permits and a reements . Before any appli- cation is accepted for processing, proof-shall be provided that the necessary state and federal regulatory permits or agree- ments have been obtained, or a statement from the regulatory body that such permits are not required shall be submitted : ( a ) United States Army Corps of Engineers : S . 404 and S . 10 permits; ( b ) California Department of Fish and Game: 1601-1603 agreement; 7/ 87 9422 .9--9422 . 11 (c ) State Water Resource Control Board (permit depends on the operation) ; (d ) Regional water quality control board (permit depends on operation) ; (e) California state lands commission permit . (Ord. 2888, 31 Dec 86; Ord . 2862, 10/86 ) 9422 . 9 Development standards--Miti ation measures. Before any application is accepted or processing, the app scant shall meet the following standards of this article, and shall incor- porate into the project design any feasible mitigation measures which will moderate adverse environmental effects . (Ord . 2888, 31 Dec 87; Ord . 2862, 10/86 ) 9422 . 10 mitigation measures--Dredging . If the project involves any dredging, mitigation measures shall include the following : (a) Dredging and spoils disposal shall be planned and car- ried out to avoid significant disruption to wetland habitats and to water circulation. (b) Limitations may be imposed on the timing of the , operation , the type of operation, the quantity of dredged material removed, and the location of the spoil site. ( c ) Dredge spoils suitable for beach replenishment shall , where feasible , be transported to appropriate beaches or into suitable longshore current systems . . (d) Other mitigation measures may include opening up areas to tidal action, removing dikes , improving tidal flushing , or other restoration measures . (Ord. 2888, 31 Dec 86; Ord . 2862 , 10/86 ) 9422 . 11 Mitigation measures--Diking or filling . If the project involves diking or filling of a wetland , the following minimum mitigation measures shall apply. These mitigation measures shall not be requirea for temporary or short-term fill or diking if a bond or other evidence of financial responsi- bility is provided to assure that restoration will be accom- plished in the shortest feasible time . ( a ) If an appropriate restoration site is available , the 7/87 9422 . 12--9422 . 13 applicant shall submit a detailed restoration plan to the di- rector which includes provisions for purchase and restoration of an equivalent area of equal or greater biological produc- tivity and dedication of the land to a public agency or otherwise permanently restricting its use for open space pur- poses. The site shall be purchased before the dike or fill development proceeds . (b ) The applicant may in some cases be permitted to open equivalent areas to tidal action or provide other sources of surface water . This method of mitigation is appropriate if the applicant already owns filled, diked areas which themselves are not environmentally sensitive habitat areas, but may become so if opened to tidal action or provided with other sources of surface water . ( c) If no appropriate restoration sites under options contained in this article are available , the applicant shall pay an in-lieu fee, determined by the city council , which shall be of sufficient value to an appropriate public agency for the purchase and restoration of an area of equivalent productive value, or equivalent surface area . This option shall be allowed only if the applicant is unable to find a willing seller of a potential restoration site . Since the public agency may also face difficulties in acquiring appropriate sites , the in-lieu fee shall reflect the additional costs of acquisition, including litigation and attorney ' s fees, as well as the cost of restoration, relocation and other costs . If the public agency ' s restoration project is not already approved by the coastal commission, the public agency may need to be a coapplicant for a coastal development permit to provide adequate assurance that conditions can be imposea to assure that the purchase of the mitigation site shall occur prior to the issuance of the permit . In addition, such restoration shall occur in the same general region, e .g. , within the same stream, lake , or estuary where the fill occurred . (Ord . 2888, 31 Dec 86; Ord . 2862 , 10/86 ) 9422 . 12 Mitigation measures--Vegetation . Any areas where vegetation is temporarily removed shall be replanted with a native or an adaptable species in a quantity and quality equal to the vegetation removed . (Ord . 2888, 31 Dec 86 ; Ord . 2862 , 10/86 ) 9422 . 13 Mitiyation measures--Reduction of disturbances . Pedestrian trails , observation platforms and other incidental structures shall be designed to reduce disturbance of wildlife and vegetation . Examples of improvements to effect such reduc- 7/87 9422 . 14--9422 . 17 tion are elevated walkways and viewing platforms, and vegeta- tive and structural barriers to lessen disturbances from permitted uses and inhibit internal access . (Ord. 2888, 31 Dec 86; Ord . 2862 , 10/86 ) 9422 . 14 Mitigation measures--Litter control . Passive nature study uses shall include a program to control litter such as placement of an adequate number of containers and posted signs . (Ord . 2888, 31 Dec 86; Ord . 2862, 10/86 ) 9422 . 15 Mitigation measures--Flood control . Environ- mentally sensitive habitat areas shall be restored and augmented to lessen the risk of flood damage to adjacent properties . (Ord . 2888, 31 Dec 86; Ord . 2862, 10/86 ) 9422 . 16 Mitigation measures--Construction and improve- ments . Any construction, alteration or other improvement shall generally be carried out between September 15 and April 15 to avoid disturbing rare, threatened , or endangered species which utilize the area for nesting . This requirement shall not apply if it can be demonstrated to the satisfaction of the director that no such disturbance would occur , in which case construction shall be timed to cause the least disturbance to wetland dependent species, such as migratory waterfowl and shorebirds . Construction or maintenance activities shall be carried our in areas of minimal size . The site shall be restored to its original state prior to completion of the project unless such site is to be altered to conform with an approved restoration project . ( Ord . 2888, 31 Dec 86; Ord. 2862, 10/86 ) 9422 . 17 Mitigation, measures--Duty of applicant . The applicant shall demonstrate that the functional capacity is maintained or augmented unless relieved of any one or more of these requirements by the California department of fish and game , and it is also shown that the project will not significantly : ( a ) Alter existing plant and animal populations in a manner that would impair the long-term stability of the ecosystem, i .e . , natural species diversity , abundance and composition are essentially unchanged as a result of the project . (b ) Harm or destroy a spe(:: ies or habitat that is rare or endangered . 7/87 9422 . 18--9422. 19 ( c ) Harm a species or habitat that is essential to the natural biological function of a wetland or estuary. ( d) Reduce consumptive ( fishing, aquaculture and hunting ) or nonconsumptive (water quality and research opportunity ) values of a wetland or estuarian ecosystem. ( Ord . 2888, 31 Dec 86; Ord. 2862, 10/86) 9422 . 18 Degraded wetland restoration . If the proposed project involves restoration of a degraded wetland, the ap- plicant shall comply with California Public Resources Code sections 30411 and 30233 to the satisfaction of the director . ( Ord. 2888, 31 Dec 86 ; Ord . 2862, 10/86) 9422. 19 Findings--Environmentally sensitive habitats. The purpose of this section is to ensure an environment which is suitable for the self-perpetuation of environmentally sensitive habitat areas . Prior to approval of energy production facili- ties, the decision-making authority shall make a finding with a statement of fact that : ( a ) Provision has been made for the enhancement of a sig- nificant portion of the project area to ensure preservation of plant and wildlife species . ( b) For all other projects, a finding shall be made that the functional capacity of the environmentally sensitive habi- tat area is maintained. (Ord . 2888, 31 Dec 86 ; Ord. 2862, 10/86) ( Prior law : Ord . 2655, 12/83 ; Ord . 2657 , 10/83 ; Ord . 2700 , 7/84 ; Ord . 2701 , 7/84 ; Ord . 2702, 7/84; Ord . 2716, 9/84 ; Ord . 2751 , 4/85; Ord . 2753, 4/85 ; Ord . 2862, 10/86) 7/87 ADDENDUM INFORMATION ITEM C-5 NON-CERTIFIED "WHITEHOLE" AREA Contents include: 1. Wetlands Coalition Timetable and Work Program 2 . Section 65860 of the State Planning, Zoning and Development Laws, 1989 3 . City Coastal Element, Chapter 6, pages 57-64 4 . City Council Action Agenda dated October 16, 1989 WETLANDS COALITION TIMETABLE AND WORK PROGRAM Meeting Date Work Program January 11, 1990 Select Coalition Chairman. Discuss need for Facilitator. Discuss Coalition objectives . Presentation of background information on Coastal Element and Certified Land Use Plan. February 1, 1990 Discuss alternative land uses and implementing strategies . Staff will draft Coalition' s comments for March meeting to facilitate further discussion. March 1, 1990 Continue discussions . March 29, 1990 Formulate recommendations for Council . Draft report with recommendations prepared by staff and returned to Coalition for comment and revisions . Revised draft will be presented to the City Council at their meeting of May 7, 1990. The Planning and Zoning Law ordinance affects the permitted uses of real property, notice shall also be given pursuant to Section 65091. (Amended by Slats. 1975.Ch.249[effective July 9,19751;Stats.1984.Ch. 1009.) (Section 65854.5 repealed by Slats. 1984,Ch. 1009.) Planning commission 65855. After the hearing,the planning commission shall render its decision in the form of recommendation to a written recommendation to the legislative body. Such recommendation shall include the legislative body reasons for the recommendation,the relationship of the proposed ordinance or amendment to applicable general and specific plans,and shall be transmitted to the legislative body in such form and manner as may be specified by the legislative body. (Amended by Stats. 1972,Ch.639. Effective August 9,1972.) Notice and hearing by 65856. (a)Upon receipt of the recommendation of the planning commission,the legislative legislative body body shall hold a public hearing. However, if the matter under consideration is an amendment to a zoning ordinance to change property from one zone to another,and the planning commission has recommended against the adoption of such amendment, the legislative body shall not be required to take any further action on the amendment unless otherwise provided by ordinance or unless an interested party requests a hearing by filing a written request with the clerk of the legislative body within five days after the planning commission files its recommendations with the legislative body. (b)Notice of the hearing shall be given pursuant to Section 65090. (Amended by Slats. 1984,Ch. 1009.) Commission review of 65857. The legislative body may approve,modify or disapprove the recommendation of the legislative body's planning commission; provided that any modification of the proposed ordinance or changes amendment by the legislative body not previously considered by the planning commission during its hearing, shall first be referred to the planning commission for report and recommendation, but the planning commission shall not be required to hold a public hearing thereon. Failure of the planning commission to report within forty(40)days after the reference,or such longer period as may be designated by the legislative body,shall be deemed to be approval of the proposed modification. (Amended by Slats.1973,Ch.600.) Prezoning 65859. A city may prezone unincorporated territory adjoining the city for the purpose of determining the zoning that will apply to such property in the event of subsequent annexation to the city. The method of accomplishing such prezoning shall be as provided by this chapter for zoning within the city. Such zoning shall become effective at the same time that the annexation becomes effective. Pursuant to Section 54790, those cities subject to such provision shall complete prezoning proceedings as required by law. If a city has not prezoned territory which is annexed,it may adopt an interim ordinance in accordance with the provisions of Section 65858. (Amended by Slats.1980, Ch. 1132.) Zoning consistency with 65860. (a)County or city zoning ordinances shall be consistent with the general plan of the general plan county or city by January 1, 1974. A zoning ordinance shall be consistent with a city or county general plan only if: (i)the city or county has officially adopted such a plan,and (ii)the various land uses authorized by the ordinance are compatible with the objectives, policies,general land uses,and programs specified in such a plan. (b)Any resident or property owner within a city or a county,as the case may be,may bring an action in the superior court to enforce compliance with the provisions of subdivision (a). Any such action or proceedings shall be governed by Chapter 2 (commencing with Section 1084)of Title 1 of Part 3 of the Code of Civil Procedure. Any action or proceedings taken pursuant to the provisions of this subdivision shall be taken within 90 days of the enactment of any new zoning ordinance or the amendment of any existing zoning ordinance as to said amendment or amendments. (c) In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such a plan,or to any element of such a plan,such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended 58 mad 1R sac�o0� UO DEFINITIONS i AQUATIC ECOSYSTEM: An area where organisms grow or live in the water and interact with each other. BIOLOGICAL QUALITY: rhe ability of an area to support living organisms. BUFFER: Any of various devices (land, fencing, vegetation) which serve to separate adjacent land uses in order to lessen any adverse impacts of one land use on another. CONSERVATION: Planned management of a natural resource to prevent exploitation, destruction or neglect. CONTINGENCY PLANNING: Planning for events that are of passible but uncertain occurrence. ECOLOGICAL RESERVE: Officially determined area being preserved for its environmental value. ECOSYSTEM: The complex of a community and its environment functioning as a unit in nature. ENVIRONMENTALLY SENSITIVE HABITAT: Any area in which plant or animal life or their habitats are rare or especially valuable and which could be easily disturbed or degraded by human activities and developments. FILL: Any earth or any other substance or material placed in submerged area. HABITAT: The place or type of site where a plant or animal naturally lives and grows. INDICATOR SPECIES: Species which one representative of a specific area or habitat. PREEMPT: To take jurisdiction away from an existing agency or entity. TIDAL FLUSHING: A process in which normal tidal action results in continual exchange of ocean water within a wetland. COASTAL ACT POLICY 30240. (a) Fnvironmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on such resources shall be allowed within such areas. (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade such areas, and shall be compatible with the continuance of such habitat areas. 30411. (b) The Department of Fish and Came, in consultation with the Commission and the Department of Navigation and Ocean Development, may study degraded wetlands and identify those which can most feasibly be restored in conjunction with development of a boating facility...Any such study shall include consideration of all the following: (1) Whether the wetland is so severely degraded and its natural processes so substantially impared that it is not capable of recovering and maintaining a high level of biological productivity without major restoration activities. (2) Whether a substantial portion of the degraded wetland, but in no event less than 75 percent, can be restored and maintained as a highly productive wetland in conjunction with a boating facilities project. (3) Whether restoration of the wetland's natural values, including its biological productivity and wildlife habitat features, can most feasibly be achieved and maintained in conjunction with a boating facility or whether there are other feasible ways to achieve such values. 30607.1 Where any dike and fill development is permitted in wetlands in conformity with this division, mitigation measures shall include, at a minimum, either acquisition of equivalent areas of equal or greater j biological productivity or opening up equivalent areas to tidal action; i provided, however, that if no appropriate restoration site is available, an in-lieu fee sufficient to provide an area of equivalent productive value or surface areas shall be dedicated to an appropriate public agency, or such replacement site shall be purchased before the dike or fill development may proceed. 9tch mitigation measures shall not be required for temporary or short-term fill or diking; provided that a bond or other evidence of financial responsibility is provided to assure that restoration will be accomplished in the shortest feasible time. - Other provisions related to wetlands are relevant to sensitive habitat areas in the Huntington Beach coastal zone. i - Other policies involving diking, dredging and filling which could affect habitat areas in the City's coastal zone are listed in Section 5.0, Water and Marine Resources. 6. Environmentally Sensitive Habitats 6.1 BACKGROUND An "environmentally sensitive habitat" is any area in which plant or animal life is either rare or especially valuable and could be easily disturbed or degraded by _ human activities and developments. The Coastal Act requires that local coastal plans delineate these environmentally sensitive habitats and establish policies for their protection and enhancement. 6.1.1 Environmentally Sensitive Habitats in the Huntington Beach Coastal Zone Two areas in the coastal zone of Huntington Beach have been preliminarily identified as environmentally sensitive habitats: 1) a nesting sanctuary for the California least tern (a bird species considered endangered by both the State and federal governments) located on the Huntington State Beach; 2) a possible wetland area located between the southern end of the Southern California Edison plant and Brookhurst Street. (See Figures 6.1 and 6.2.) Least Tern Nesting Sanctuary The California least tern is a bird species which is native to Southern California coastal salt marshes. These birds nest on sandy beaches close to wetlands and estuaries where they feed on small fish. Encroaching development has resulted in loss of feeding grounds, and heavy recreatiohal use of sandy beaches has disrupted natural nesting areas. These factors have threatened the existence of the least tern. 59. E A w E AsthL HUNTINGTON BEACH CALIFORNIA Environmentally Sensitive Habitat: PLANNING DIVISION Figure 6.1 To help protect the least tern from extinction, a five-acre fenced nesting area was created in 1969 on the Huntington Beach State Beach. This nesting sanctuary is a permanent facility and is maintained by the State Department of Parks and Recreation. The tem colony nesting there was one of the three largest in the State in 1978, and it is ranked first in terms of nesting success. Wetlands The City believes that the definition of "wetlands" in the Coastal Act could be improved to better identify environmentally important areas the Act intends to protect. Nonetheless, the State legislature did adopt the following definition of "wetlands" in the Coastal Act: "Land within the coastal zone which may be covered periodically or permanently with shallow water and include salt water marshes, freshwater marshes, open or closed brackishwater marshes, swamps, mudflats and fens." The Coastal Act prohibits diking, dredging and filling of wetlands except for very limited purposes related to energy production, boating and other regionally important activities. Wetland areas within the City have been preliminarily identified by representatives from the State Coastal Commission, State Department of Fish and Game (DFG), U.S. Army Corps of Engineers (COE), and the U.S. Fish and Wildlife Service (USFWS). These agencies conducted an explicit delineation of the boundaries and biological value of the wetlands. The results of this effort are included in an appendix to the background report on Environmentally Sensitive Habitats prepared by the City's Development Services Department. Figure 6.2 shows the potential wetland areas between Beach Boulevard and the Santa Ana River. The primary resource value of those coastal wetland areas is their function as habitat for water-associated and marsh-dependent bird species. The Belding's savannah sparrow, and California least tern, both endangered species, feed in the area and the Belding's savannah sparrow nests there. The physical characteristics, natural resource values and unique features of the area are discussed in greater detail in the document prepared by the DFG for the Regional Coastal Commission staff which is an appendix to this plan. Comprehensive lists of wetland indicator plant species and the bird species observed on the site are inc luded in the report. The City has indicated visitor-serving and energy expansion uses for these areas with the expectation that in exchange for development rights, certain of these areas will be restored and enhanced. Though the area known as the Bolsa Chica is not located in the jurisdiction of the City of Huntington Beach, at this time, the City considers it imperative to contribute meaningful influence on the resolve of the area's future uses. 1 Background Report: "Environmentally Sensitive Habitats," City of Huntington Beach Department of Development Services, 1980. 61 . 1. The City urges all appropriate State and Federal agencies to accelerate efforts to positively define only specific acreage in the Bolsa Chica which, in fact, can be scientifically justified as environmentally sensitive habitat. In addition, the City requests and urges these agencies to provide precise recommendations as to the economic feasibility of rehabilitation — of such designated ecologically sensitive areas. When these State and Federal responsibilities are properly presented and -- accepted, the City will totally support the preservation of such designated environmentally sensitive habitat areas. 2. Residual acreage in the Bolsa Chica which is not included in State and Federal designation of environmentally sensitive habitat areas will be supported by the City for full development of compatible land uses. Further, it is the City's intentions that such uses will not be burdened -' with unrealistic or excessive set backs and other restrictive ordinances and codes intended to arbitrarily force .sanctions against compatible land use development. — 3. It is further intended by the City to instruct and direct staff to organize and structure a format by which the City can open, as soon as possible, _ negotiations and discussions with the property owner of record of the subject Bolsa Chica land and the County of Orange for the purpose of achieving annexation of the Bolsa Chica into the City of Huntington Beach. 6.1.2 Regional and Local Interests in Wetland Areas Wetlands are recognized as especially valuable areas which provide numerous public benefits including 1) breeding and "nursery" areas for marine species with commercial and recreation value, 2) habitat for numerous wildlife species _ including rare and endangered varieties, 3) natural flood control, and 4) aesthetic amenities. The loss of coastal wetlands in Southern California has been dramatic and drastic. Most of those that remain have been altered, damaged or otherwise threatened. The protection of these increasingly scarce ecosystems is recognized in the Coastal Act as an important greeter-than-local goal. 6.1.3 State and Federal Agencies Responsible for Wetlands Protection Local control over development in wetlands has been largely pre-empted by _ State and federal agencies because of the greater-than-local value of these areas. The principal agenciescharged with protection of wetlands are discussed below. Federal Agencies The Amoy Corps of Engineers (COE) has permit authority over any development that would discharge dredged or fill material into waters of the United States, including wetlands. The U.S. Fish and Wildlife Service (USFWS) reviews permits before they are issued by the Corps of Engineers. A permit cannot be issued over the objection of the USFWS, however, it can be appealed at the State or federal levels. 62 . _ •h�N� =END COASTAL IIALT MARSH s COASTAL 1.C1k OX MARSH FRE"MACKISH WATER • L 31 RIPARIAN AREA PA. XTAMCRMG WATER AMD Vk 0 RESTORABLE AREAS WHICH HAVE BEEN FILLED •�i♦ J7^�' A Imo,•+ •'ASTAL ZONE 004JNOARY CALIF.LEAST TERN S-ACRE NESTING SANCTUARY r . • rQ•y t �� ♦ II r 140 IT Vol"- FENCED NEST SITE VolK***OG DIV&oN Figure 6.2 As Depicted By The Dept. Of Fish ;:;• ��, � _ ;•� of r'r r 1 �\ S • Game Permits must also be consistent with guidelines issued by the USFWS, the Environmental Protection Agency and the California Coastal Zone Management P rog re m. State Agencies The Coastal Commission has authority to regulate activities in wetlands and to protect against any significant disruption of habitat values. The Department of Fish and Game (DFG) must issue a written statement that important ecological resources have been protected prior to approval of any project in a wetland. The DFG also has the responsiblity of proposing plans to protect, preserve, restore, acquire and manage wetlands. 6.2 ANALYSIS 6.2.1 Restrictive Lend Uses The City's principal strategy for protecting environmentally sensitive habitats is to designate them as "visitor-serving commercial", "conservation," and "industrial/energy production" with the intent that development proposals will be accompanied by strategies to enhance significant wetland areas adjacent to the proposed project. 6.2.2 Buffers In addition to evaluating development in the wetland areas to ensure significant habitat values are not destroyed, the City also requires buffers to the most - sensitive areas. In some cases, such as the area adjacent to the Bolsa Chica, the buffer will be a setback along the Huntington Beach Mesa bluff. Other acceptable buffers in areas where large setbacks are infeasible would be r elevation changes or barriers which inhibit access. The City will study buffer strategies and catalogue those which protect the habitat value of wetlands in aesthetically pleasing ways. _ 6.2.3 Aesthetic and Biological Improvements The City specifically promotes the enhancement and/or restoration of environmentally sensitive habitats. The City will investigate funding opportunities from sources such as the California Coastal Conservancy for such enhancement projects. The City will also require that any habitat restoration strategies include measures to ensure against flooding in surrounding properties. Another measure will be to encourage plantings and other improvements to the flood control channel embankments and to the edges of the wetland areas to r increase species diversity, provide better screening and to promote their visual attractiveness. Additional protection is afforded by measures which require review of oil spill plans to ensure sensitive areas are protected. (See Section 9.) 6.2.4 Public Access In coordination with the aesthetic and biological enhancement of the wetlands, the City encourages low-impact public access to allow nature study and 63_ enjoyment of amenities. The City will investigate strategies to provide boardwalks, peripheral trails, interpretive exhibits and other educational _ facilities in or adjacent to coastal wetlands so long as such activities do not signif icant ly disrupt any habitat values or impair the viability of the ecosystem. 6.3 CONCLUSION The City's coastal plan complements efforts by State and federal agencies to protect and enhance sensitive habitat areas. Principal objectives of the plan i nc 1 ud e: Protection of significant habitat areas by requiring wetland enhancement _ and buffers in exhange for development rights. Improved contingency plans related to oil and toxic material spills to -- protect these high priority areas. Improvement of the aesthetic and biological quality of wetland areas. 64 . Page 4 - 10/16/89 - Council A ncy Agenda (4) D-2 . (City Council) PUBLIC HEARING - ZONE .CHANGE 88=-18 - APPEAL BY COUNCILMAN GREEN OF PLANNING COMMISSIOW S AJCT! N TO WITHDR" - NON-CERTIFIED COASM ARIA- (INLAND =SIDE OF PCH B'9TW2EN BEACH BLVD AND SANTA ANA RIVPIR) Public hearing to consider the following : (CONT•G10 01 D APPLICATION NUMBER: Zone Change No. 88-18 (Appeal to FROM Planning Commission ' s action to withdraw) 3/19/89) BPPLICANT: City of Huntington Beach APPELLAPT: Councilman Peter Green LOCATION: The Non-Certified Coastal Area of the City of Huntington Beach generally located on the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River . REQUEST: A public hearing to consider an appeal filed by Councilman Green of the Planning Commission' s action to withdraw Zone Change 88-18 . Zone Change 88-18 proposes to rezone the entire subject area to 7 . 0 acres of Visitor Serving Commercial , 17 . 0 acres of Industrial Energy Production with a Coastal Conservation Overlay, 83 . 0 acres of Industrial Energy Production within the Coastal Zone, and 124 . 5 acres of Conservation as indicated on the attached map . The zone change is further identified as follows : Area One: From RA-0-FP2 (Residential Agricultural District combined with Oil Production and Floodplain Districts) to VSC-CZ-FP2 (Visitor Serving Commercial combined with Coastal Zone and Floodplain Districts) ; Area Two : From RA-O-FP2 (Residential Agricultural District combined with Oil Production and Floodplain Districts) to CC-CZ-FP2 (Coastal Conservation District combined with Coastal Zone and Floodplain Districts) ; Area Three: From M1-A-O-FP2 (Restricted Manufacturing District combined with Oil Production and Floodplain Districts ) to CC-CZ-FP2 (Coastal Conservation ' District with Coastal Zone and Floodplain Overlay Zone) ; Alga _FQUr : From M2-0-FP2 ( Industrial District combined with Oil Iroduction and Floodplain Districts) to M2-0-CC-CZ-FP2 ( Industrial District combined with Oil Production, Coastal Conservation, Coastal Zone and Floodplain Districts) ; RA-FP2 (Residential Agricultural District with Floodplain District) to M2-0-CC-CZ-FP2 ( Industrial District combined with Oil Production, Coastal Conservation, Coastal Zone and Floodplain Districts) ; Area Five: From LUD-FP2 (Limited Use District combined with Floodplain District) to CC-CZ-FP2 (Coastal Conservation combined with Coastal Zone and Floodplain Districts) ; (Continued on next page) Page 5 - 10/16/89 - Council/Agency Agenda (5) Area Six: From LUD-FP2 (Limited Use District combined with Floodplain District) to CC-CZ-FP2 (Coastal Conservation District with Coastal Zone and Floodplain Districts) ; Area Seven: From LUD-FP2 (Limited Use District combined with Floodplain District) to CC-CZ-FP1 (Coastal Conservation District combined with Coastal Zone and Floodplain Districts) ; LUD-FP1 (Limited Use District combined with Floodplain District) to CC-CZ-FPl (Coastal Conservation combined with Coastal Zone and Floodplain Districts) ; Area Eight : From M2-0-FP2 (Industrial District combined with Oil Production and Floodplain District) to M2-O-CZ-FP2 (Industrial District combined with Oil Production, Coastal Zone and Floodplain Districts) ; Area Nine: From M2-0-FP2 ( Industrial District combined with Oil Production and Floodplain District) to M2-O-CZ-FP2 (Industrial District combined with Oil Production, Coastal Zone and Floodplain Districts) ; and Ml-A-FP2 (Restricted Manufacturing District combined with Floodplain District) to M1-A-CZ-FP2 (Restricted Manufacturing District combined with Coastal Zone and Floodplain Districts) ; Area Ten: From (Q)ROS-FP2 (Qualified Recreational Open Space District combined with Floodplain District) to (Q)ROS-CZ-FP2 (Qualified Recreational Open Space District combined with Coastal. Zone and Floodplain Districts) . ENVIRONMENTAL STATUS. Categorically exempt pursuant to Section 15265 of the California Environmental Quality Act . COASTAL STATUS: This project is in the Coastal Zone. This zone change must be ultimately reviewed and approved by the California Coastal Commission. RECOMMENDED ACTION: Staff recommends that the City Council take the following actions : a�i� pr•oucd a3 ---a! (1) Refer 'Lone Change 88-18 back to the Planning Commission for action and recommendation; Licc amcnd�d 4- 1 �° .4 �er ��/ (2 Authorize the formation of a wetlands coaliion to C� ern��t ' ve land uses ; the coalition shall t,sep4n . nnls�►'-ON4are.,") study alt include embers : (C7 raw 07 abSM►"I) a . Property owners (Edison, CalTrans , Mills Land and Water , Pica rel1i);rep- A-o , D.6. F1--JConireI V#*str«t; A(Z)Approved as 'tmeod 1). Friends of the wetlands representative / (w1beAell-no) c: . Huntington Beach Conservancy representative d . Administration representative-fV.f►ewCA"41)er0-? " wercc; �B.cnniS�er-oafe�' e • City Attorney representativeKp.�•,om8�. 'Eh21hors; noo M1 f . Community Development representative l g . (2) City Council members]94 by4kSe� I!'bbiM �e �i rk nesoderrt IVed 3) Direct staff to work with the coalition to prepare a land use plan and explore various land planning .f"ro�G^ -Q6sG"'� technics such as specific plans and Transfer �lna�sr_ o Development Rights programs . _ PUBLIC N 'E IPUBLIC NOTICE � PUBLIt�N01ICE PUBLIC NOTICE PUBLIC NOTICE I PUBLIC NOTICE PUBLIC NOTICE I PUBLIC NOTICE s - N OTICE OF PUBLIC HEARING ZONE CHANGE NO. 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach ENVIRONMENTAL STATUS: Categorically exempt City Council will hold a public hearing in the Council pursuant to Section 15265 of the California Environmental Chamber at the Huntington Beach Civic Center, 2000 Quality Act. Main Street, Huntington Beach, California, on the date and at the time indicated below to receive and consider COASTAL STATUS: This project is in the Coastal Zone. the statements of all persons who wish to be heard relative This zone change must be reviewed and approved the to the application described below. g pp b y California Coastal Commission. DATE/TIME: Monday, February 5, 1990, 7:00 PM APPLICATION NUMBER: Zone Change No. 88-18 ON FILE: A copy of the proposed request is on file in the City Clerk's Office and the Community Development APPLICANT: City of Huntington Beach Department, 2000 Main Street, Huntington Beach, Cali- fornia 92648, for inspection by the public. A copy of the LOCATION: The Non-Certified Coastal Area of the City staff report will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after of Huntington Beach generally located on t+�c inland side February 2, 1990. of Pacific Coast Highway between Beach Boulevard and the Santa Ana River (see attached map). ALL INTERESTED PERSONS are invited to attend said REQUEST: A public hearing to rezone the 232 acres public hearing and express opinions or submit evidence non-certified coastal area as follows: Change the zoning for or against the application as outlined above. If there on a 7.0 acre parcel to Visitor Serving Commercial and are any further questions please call Scott Hess, Senior rezone the remaining 225 acres by affixing a Coastal Planner, or Ruth Lambert, Assistant Planner, at 536-5271. Conversation Overlay to the existing zoning on the subject property. For further information regarding the specifics Connie Brockway, City Clerk, City of Huntington Beach of this zone change application, please contact the City Department of Community Development. Published Orange Coast Daily Pilot January 26, 1990F123 I I l J�f J • `, I '` \.1 O.C.SnN1Ta7fOM ','�:: ^"GV• Gd D OCp TRUT(Lrr PLAXT &vb*eat Area �r�pt�ec( �.o►�iY�� VISITOR SERVING COMMEPCIAL - --HAMILTCN EXTENSIOtl EXHIBIT A CONSERVATI011 ACIR_'�, NONCERTIFIED 1tIDUSRTIAL ENERGY PRODUCTION COASTAL AREAS (/'1 /[''�� Ik•NTV4GTON BEAC14 CR(FOQW" IND, ENERGY PROD./ CONSERVATION ZONE: ►AN6E � �/✓ y~ •� �N`rtG OEP�RTMEM J ti % n M Authorized to PuoliSfi'Mvertisements of all kinds Including public notices by Decree of the Superior Court of Orange �. County, Cardomia, Number A-6214, September 29, 1961, and A-24831 June 11,1963. STATE OF CALIFORNIA County of Orange I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the below entitled matter. I am a principal clerk of the ORANGE COAST DAILY PILOT, a newspaper of general circulation, printed and published in the City of Costa Mesa, County of Orange, State of California, and that attached Notice is a true and complete copy as was printed and published in the Costa Mesa, Newport Beach, Huntington Beach, Fountain Valley, Irvine, the South Coast communities and Laguna Beach issues of said newspaper to wit the issue(s) of: January 26, 1990 t: 1 declare, under penalty of perjury, that the foregoing is true and correct. Executed on - January 26 ' 199Q at Costa Mesa, California. Signature PROOF OF PUBLICATION s _ i. Legal Notice j City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach, CA 92648 148-081-10 21431 Antigua Ln. Huntington Beach, CA 92646 i FIRST CLASS MAIL .�. Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach, CA 92648 148-027-33 Keith Campbell 8121 Ridgefield Huntington Beach, CA 92646 FIRST CLASS MAIL ►MaWCTON 91,WH r �g _ - - , .. Ay "'" %4L ty 101, _ -� ♦ tr 014 i JA, - o tW i 14 4" ;�1� - tea ► A�3 � 4 Aso f of - ? _cat o� -- o 1 r/ i J - i t �ct K LIN- CA) `Y HETRICK BYRON TARNUTZER KERRY SHAW UUpper Newport Plaza, Ste. 201 391 Antigua La:.e .ai'. Run area Ana, CA 92705 Newport Beach, 92660 lAiuntington Beach, CA 92646 C 148-027-58 148-121-03 A 148-081-13 148-027-33 149-023-07 148-027-35 KEITH CAMPBELL KENNETH A. LEE SCOTT HOOPER/ 9121 Ridgefield J 1109 N. Evonda Street P,CARMELA TIJERIMA Huntington Beach, CA 92646 Santa Ana, CA 92703 8131 Ridgefield Drive Huntington Beach, CA 92646 148-121-01 148-027-43 149-041-31 BERNARD KAPLAN / DARLENE GIACONE /ODIE POWELL ✓ P.O. Box 5278 8126 Ridgefield Drive v 9021 Rhodesia Drive Huntington Beach, CA 926115 Huntington Beach, CA 92646 Huntington Beach, CA 92615 148-027-52 148-027-46 149-041-21 ROBERT UJIHARA ROBERT B. MELLO JMARCI KLAUSER 2901 Rebano 15690 Poppy Way 9062 Adelia Circle San Clemente, CA 92672 Westminster, CA 92683 Huntington Beach, CA 92646 148-081-11 148-081-12 149-014-02 ROGER GAc7 EIGEP. v''�a.L.E,TTH BELEW GERALD GARTLAND � 21421 Antiqua Lane 21401 Antiqua Lane 21832 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-24 149-014-01 148-027-55 KAUSHAL SHARMA ROBERT McCARGAR ,,,ROY LOTHRONGER r✓ 22381 Harwich Lane 21822 Kiowa Lane 20311 Brentstone Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 OWNERIOCCUI'ANT 148-027-35 'T jQQF,11, Qc1 " e14-. 148-081-06 9135 Foxhall Drive OWNER/OCCUPANT JAMES N,T_EMA.RTN Huntington Beach, CA 92646 l 8131 Ridgefield J8522 Sandy Hook Dr. Hunt_ngton Beach, CA 92646 Huntington Beach, CA 92646 "l_4-15G-11 148-027-56 148-081-07 SCOR'�ROPERTIES j RALP11 GUMBERG WAYNE LEWIS 9. 675 Irvine Avenue 8112 Foxhall Drive 8522 Sandy Hook Drive Costa Mesa; CA 92626 Huntington Beach, CA 92646 Huntington Beach, CA 92646- 148-027-57 148-081-08 114-150-50/`•, Tll1�T Jl-T/-[--^=.`.•\;N L ill w RE CE AYERS b,-' � 1 14-1 _6.'� 8116 Foxhall Drive 8502 Sandy Hook Drive CALIF. PUBLIC VQZ RKS Huntington Beach, CA 92646 Huntington Beach, CA 92646 :21643 Pacific Coast Hwy. Huntington Beach. CA 92648 148-027-58 / 148 1-09 Planning Commissioner STANLEY HETRICK ✓ GAY BOYER °✓ Victor Leipzig v 1722 E. Arbutus Avenue . 21441 Antigua City of Huntington Beach Anaheim CArt- 92805 Huntington Beach, CA 92646 2000 Main Street Huntington Beach, CA 92648 148-027-59 '148-081-10 14-150-75�76 & 77 �� 1`�!.VJD-TUCKF..R ,/ IJOI N HILL I ASCON PROPERTIES 8126 Foxhall Drive �21431 Antigua Lane i 21572 Surveyor Circle \.jHuntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 14LO27-60 148-121-03 Q J�,`� r148-021-25 GEOFFREY HARTSTALL BYRON TARNUTZER �^' ,r �1HUNTINGTON BREAKERS 8132 Foxhall Drive i/' [-F O.Box 24-6-- l� `qv P.O. Box 22630 Huntington Beach, CA 92646 Costa Mesa, CA 92627 �,t i ���D Long Beach, CA 90801 148-027-61 148-121-04 (�°" 148-027-51 J JEFF REARDON / CITY OF HUNT. BC J ,,EDW FRD HARTLINE � 8136 Foxhall Drive ✓ J 641 Edison Avenue 8135 Foxhall Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-62 148-027-52 148-027-63 J RICHARD BARNES ✓ ROBERT UJIHASRA ✓ JERROLD DUNLAP 8142 Foxhall Drive '/ 2901 Rebano "8146 Foxhall Drive Huntington Beach, CA 92626 San Clemente, CA 92672 Huntington Beach, CA 92646 149-041-17 148-027-53 149-041-30 JOSEPH JOI-I,:SON " RUSSELL BERG ✓ �AVT-D ARCHIBALD 9002 Adelia Circle 8125 Foxhall Drive 031 Rhodesia Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-54 149-023-08 HARRY WEBER JR. Robert London Moore, Jr. WILLIAM WELLS 8121 Foxhall Drive MILLS LAND & WATER CO. 41911 Kiowa Lane Huntington Beach, CA 92646 P.O. Box 7108 untington Beach, CA 92646 Huntington Beach, CA 92615 149-371-14 149-371-25 149-023-09 NAGASH SHETTY / /I,AR.RY WRJGHT ✓ PAUL HOWARD v 9332 Gatehead Drive 22391 Harwich Lane `�1931 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-15 149-371-26 149-023-10 'GERALD ANDERSON z/ DALE HOLMSEN '� FARES JAHSHA-X1 9342 Gatehead 'P.O. Box 606 1941 Kiowa Lane v Huntington Reach, CA 92646 Cedar Glen: CA 92321 'Huntington Beach, CA 92646 149-371-16 149-371-27 .149-023-11 AR T E11rUiG R. RA!41L ✓ ,STE VEN PETERS ]PON MCKINNEY v 22301 Harwich Lane v/ 22411 Harwich Lane '21961 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-17 / 149-371-28 49-023-12 /JAMI S BRADY 1 MINOO M-ALEK �ULIUS PALD1 f 22331 Harwich Lane t-%22421 Harwich Lane 21832 Windsong Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 i Huntington Beach, CA 92646 1114-481-20 114-495-01 114-481-11 DO'N BRTJNK JUANITA WEIR ✓ KATHLEEN MOONEY 9012'Chris•tine Lane 8041 Newman Avenue 22101 Jonesport Lane ✓ Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-21 114-495-02 114-481-12 KOUROSH KHAVARI ✓ JAMES IBBOTSON MICHAEL HUNTER 9022 Christing Drive 9262 Christing Drive v 22012 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-22 1/ ✓ 114-495-03 114-481-13 WILLIAM KELLER GUENTER STEVER J/. MARCEL LOURTIE 9032 Christine Drive 9252 Christine Drive V 22001 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 d% Cl io 114-481-23 114-495-04 114-481-14 ��� WILLIAM BURKE ALBERT NADOW ✓ I FRANK SZEKULA t 9042 Christine Drive P.O. Box 8747 22011 Hula Circle Huntington Beach, CA 92646 Anaheim, CA 92802 Huntington Beach, CA 9264� 114-481-24 ,/ , ll4-495-0S--__ S2� �J 5+� 114-481-15 PHILIP BEUKEMA J DENISE LYNCH -j/�p THOMAS LENIHAN `�� 9052 Christine Drive 9232-Christine Drive 22021 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481--25 114-495-06 114-48��R HARVEY HENDERSON ROBERT SIMPSON / JOHN ✓ 9062 Christine Drive ✓ 9222 Christine Drive 9591 Onset Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-26 J 114-495-07 114-495-08 KARL WYSOCKI LUCILLE BAGNOLI . l HERBERT AHN J 9072 Christine Drive 9562 Hightide Drive ✓ 9202 Christine Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-495-09 114-495-10 114-49S-11 C.1/ FAROUK SHAMOO J' FRED GALLUCCIO ✓ ✓ JACK BUFFA J 9192 Christine Drive 9182 Christine Drive 9172 Christine Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-495--12 114-495-13 114-495-14 MARSPIALL PAPKE EDWARD DREWS ✓ GREG BRENNER 9162 Christine Drive v 9152 Christine Drive 9142 Christine Dirve Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92.646 114-495-15 i 114-495-16 IVY DANE-MINS Z WAYNE MURRY �1,3 / ✓ GARY GORNL N Taiyo Investment 9130 Christine Drive J 9122 Christine Drive 19750 S. Vermont Avenue #145 Huntington Beach, CA 92646 Huntington Beach, CA 92646 Torrance, CA 90502 149=371-18 l 149-371-29 149-024-01 .T W—S BRINK v ! HARVEY RUDY JOHN ACAMPORA 22321 Harwich Lane P.O. Box 26134 l/ \,/21932 Kiowa Lane Huntington Beach, CA 92646 1 Santa Ana, CA 92799 Huntington Beach, CA 92646 • i 149-371-19 -481-01 149-024-02 PING WILSON ✓.' /BETTY HYATT RICHARD FINLEY (/ 22331 Harwich Lane V 22001 Susan Lane ✓21912 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-20 114-481-02 ✓ 149-024-03 ROBERT BELANGER HARRY HOWELL v/ CHARLES GANT 22341 Harwich Lane 1815 Toyon Lane ✓21902 Kiowa Lane Huntington Beach, CA 92646 Newport Beach, CA 92660 Huntington Beach, CA 92646 i 149-371-21 114-481-03 1 -371-12 WILLIAM MALKIN �. �/ CHARLE9�I AVER LLEN GIMENEZ 22351 Harwich Lane 22031 Susan Lane 9341 Gateshead Drive Huntington Beach, CA 92646 Ne-wpor-t Beach,-C-A-92660 __ Huntington Beach, CA 92646 149-371-22 114-481-04 ,/ 149-371-13 RON WILES CAROL CAGLE FRANK C'T-1ENELIA 22361 Harwich Lane 21572 Oakbrook ✓ 9331 Gateshead Huntington Beach, CA 92646 Mission Viejo, CA 92692 Huntington Beach, CA 92646 i ' 149-371-23 ;:� �Li 1 114-481-05 '� ��� 149-041-31 TERRY HARMON I r62 ND COLE �� --'ODIE POWELL 952 Hamilton Avenue #343 2san Lane 9021 Rhodesia Drive \,Huntington Beach, CA 92646: Iton Beach, CA 92646 Huntington Beach, CA 92646 j 149-012-01 149-022-01 149-041-31 }�, �w��� J RICHARD DAFFORN �/ J GUY MARTIN `� RICHARD NIPWELL 21802 Kiowa Lane 21882 Kiowa Lane 9001 Rhodesia Drive Huntington Beach, CA 92646 Huntington Beach, CA 9.2646 Huntington Beach, CA 52646 \ " 149-012-02 %'149-022-02 ��, 1�' K✓,� 149-041-33 J ALVA BATTENFIELD �' CHARLES PRIDDY ( �� JOHN EARLEY 21782 Kiowa Lane 2971 Brookstone Way 9002 Rhodesia Drive Huntington Beach, CA 92646 k. Sacramento, CA 96833' Huntington Beach; CA 92646 149-012-03 49-022-03 149-041-34 DONALD ZALESKI AVID NELSON ;/ rRED GRIWS ,f 21772 Kiowa Lane J 21862 Kiowa Lane 202 21st Street #B Huntington Beach, CA 92646 Huntington Beach, CA 92646 Newport Beach, CA 92663 149-013-01 / 149-023-01 49-041-35 v RINO RUBERTI t/ �ILEE BRANKOV 'v JOHN MONTOYA V 21771 Kiowa Lane 21841 Kiowa Lane 9032 Rhodesia Drive Huntington Beach. CA 92649 Huntington Beach, CA 92646 Huntington Beach, CA 92646 �149-!,113-02 149-023-02 149-041-36 WIDE GRANTHAM ✓ �! VINTON MARRIOTT ✓ GEORGE HUTTON-POTTS 21781 Kiowa Lane 21851 Kiowa Lane P042 Rhodesia Drive v Huntington Beach, CA 92646 JHuntington Beach, CA 92646 ! Huntington Beach, CA 92646 149-013-03 149-023-03 149-011-01 LOUIS KASTORFF f / ISOLDE WITTMAN 611, CTOR ZIEGLER 21801 Kiowa Lane 121861 Kiowa Lane 001 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-04 149-011-02 RHODA ENGLERT ✓'� j149-023-04 RICHARD SVOBODA CpUY ADAMS f! 21 R11 Kiowa Lane 21871 Kiowa Lane 021 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-05 149-023-05 149-011-03 ✓ DON HOLMES ✓ 11D- ANIEL MALLOY �tONALD JETT 21821 Kiowa Lane � 1881 Kiowa Lane 9031 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-013-06 149-023-06 �49-011-04 CHARLES CARTER ✓ JAMES SIMPSON / A. ASHURST (/ 21831 Kiowa Lane 21891 Kiowa Lane 9051 Bermuda Drive Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-021-01 149-023-07 4 114-481-06 ARTHUR ASHLEY ✓ OWNER/OCCUPANT 4tv N CHRISTOPHER VALSAMAKIS 21842 Kiowa Lane 21901 Kiowa Lane ✓ L122081 Susan Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-17 114-481-27 ��� -(¢y^ 114�8481-07 S"I"EVEN HURLBUT J ✓ OCCUPANT �a' (BEVLERLY REASON 22051 Hula Circle 9392 Waterfront Drive J v 2091 Susan Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 114-481-18 ✓ 114-481-28 ✓ 114-481-08 KENNETH KIMBALL ELMORE LORANGER J ROBERT WHITE 22071 Hula Circle 9092 Christine Drive \_A2072 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 i/ 114-481-19 114-481-29 114-481-09 FRANK_LIN GOODENOUGH ALIREZA VAZIRI ✓ /"RA_YMOND JONES 9002 Christine Circle 66 Balboa Coves 1� 22052 Hula Circle Huntington Beach, CA 92646 Newport Beach, CA 92663 Huntington Beach, CA 92646 114-481-20 sf 114-481-30 114-481-10 DON BRUNK 1 MARION GOLFOS AGERALD RILEY 9012 Christine Drive 22161 Wood Island Lane l� 22042 Hula Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 HARRY ANDERSON CARL BARRERA LAWRENCE MALLON 8136 Pawtu ket 240 Old Army Road 041 Adelia Circle Huntington each, CA 9264d �carsdale, NY 10583 Huntington Beach, CA 92646 148-027-25 I 148-027-32 149-041-13 ROBERT MARLOW BROWN /OCCUPANT �FRED I. GRIMES 9061 Rhodesia Drive ;/ 9021 Rhodesia Drive , 202-B 21st Street Huntington Beach, CA 92646 Huntington Beach, CA 92646 Newport Beach, CA 92663 q� 149-041-28 149-041-31 149-041-31 WOOLSEY, ANGELO & MILLS LAND AND WATER MR. LARRY SITTON THATCHER 18090 Beach Blvd., Ste Six Calif. Dept. of Fish & Game 2099 San Joaquin Hills Road Huntington Beach, CA 92648 330 Goldenshore, Ste 50 Newport Beach, CA 92660 Attn: Robert London Moore, Jr. Long Beach, CA 90802 Attn: Roy Woolsey Attn: Wildlife Management STEVE BONE MARK SHAPIRO Robert Mayer Corporation 21322 Ashburton Cir. 660 Newport Center Drive #105 Huntington Beach, CA 92646 Newport Beach, CA 92658 PAUL D'ALESSANDRO TRUDY OBRIKAT DON TROY Deputy City Attorney 21871 Newland #131 5272 Allstone Drive City of Huntington Beach Huntington Beach, CA 92646 Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 Katherine Stone/Margaret Sohagi KENT M. PIERCE HERB NAKASONE, MGR. Freilich, Stone, Leitner, Carlisle HB/FV Board of Realtors Flood Programs Division The Wilshire Landmark, Ste 1230 19900 Beach Blvd., Ste. I Env. Mgnt. Agency/Flood Ctrl. 11755 Wilshire Blvd. Huntington Beach, CA 92648 P.O. Box 4048 Los Angeles, CA 90025-1518 Santa Ana, CA 92701 RobeI't iviandic:/Gary Goo,-nail Title Energy of California Paul Gonzales, Chief Branch"C" HB Wetlands Conservancy 10537 Santa Monica Blvd. Env. Ping. D.O.T., Dist 12 P.O. Box 5903 3rd Floor 2501 Pullman Street Huntington Beach, CA 92615 Los Angeles, CA 90025 Santa Ana, CA 92705 Attn: Bill Curtis JOHN TOYAMA CHARLES GRANT/TAFFY EVERTS VIRGINIA WARRINGTON Space 288 Friends of the HB Wetlands A. 2011 Hula Circle �/ 21851 Newland Street 21902 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92647 Huntington Beach, CA 92646 114-481-14 i CHARLES PRIDDY / LARRY HARTSUIKER / TERRY HARMON 21872 Kiowa Lane ✓ ,/9062 Christine Drive ✓ /c/o Lucille Harmon Huntington Beach, CA 92646 Huntington Beach, CA 92646 t/ 9582 Hamilton Avenue #343 149-022-02 114-481-25 Huntington Beach, CA 92646 149-371-23 JOSEPH WHEELOCK /RAYMOND COLE ASCON PROPERTIES 9232 Christine Drive ✓ 22061 Susan Lane \, ¢75 Irvine Avenue #2-B6 Huntington Beach, CA 92646 Huntington Beach, CA 92646 uCosta Mesa, CA 92626 224-495-05 114-481-05 114-150-11 ' WHITE HOLE LABELS 1/24/90 (4160d) AMIGOS DE BOLSA CHICA GARY GORMAN ; MICHAEL MARTIN P.O. Box 1563 9122 Christine Drive i So. Cal. Edison Co. Huntington Beach, CA 92647 Huntington Beach, CA 92646 ! 7333 Bolsa Avenue Arnt: Lorraine Faber Westminster, CA 92683 ASSEMBLYMAN FRIZZELLE DEPT. OF FISH & GAME CARL NELSON, DIRECTOR 17195 Newhope St. Ste. 201 1416 9th St. 12th Floor Env. Mgmt. Agency-P.W. Fountain Valley, CA 92708 Sacramento, CA 95814 400 Civic Center Dr. W. Attn: Jim Orr Attn: Bob Radovich P.O. Box 4048 Santa Ana, CA 92702-4048 SENATOR BERGESON COASTAL CONSERVANCY F. WILLIAM OLSON, MNGR 140 Newport Center Dr. 1330 Broadway, Suite 1100 Analysis Sec/Env Mgnt Agency Suite 120 Oakland, CA 94612 12 Civic Center Plaza Newport Beach, CA 92660 Attn: Reed Holderman/ P.O. Box 4048 Attn: Julie Froberg Wendy Eliot Santa Ana, CA 92702-4048 CAL COASTAL COMMISSION CALTRANS/DISTRICT 7 U.S. FISH & WILDLIFE SVC. South Coast Area 120 S. Spring Street Div. of Ecological Service 245 West Broadway, Ste. 380 Los Angeles, CA 90012-3606 2400 Avila Road Long Beach, CA 90802 Attn: Bob Dixon Laguna Niguel, CA 2677 Attn: John Leslie Attn: Jack Fancher DEPT. OF THE ARMY CAL. DEPT. OF FISH & GAME RUTH GALLANTER L.A. Dist, Corp. of Engr. Region 5 P.O. Box 66494 F.O. Box 2711 245 W. Broadway, Ste. 350 Los Angeles, CA 90066 Los Angeles, CA 90053-2325 Long Beach, CA 90802 Attn: Cheryl Hill Attn: Fred Worthy, Jr. DAISY PICCiRELLi CALTRANS/DISTRICT 7 CALTRANS/DISTRICT 7 P.O. Box 6202 P.O. Box 2304 P.O. Box 2304 Mesa, Arizona 85206 Terminal Annex Terminal Annex Los Angeles, CA 90051 Los Angeles, CA 90051 Attn: Ron Kozinski Attn: Ron Herdman MARY F. PORCARO ASCON PROPERTIES CABRILLO MOBILEHOME 8135 Foxhall Drive 21602 Surveyor Circle HOMEOWNERS ASSN. Huntington Beach, CA 92646 Huntington Beach, CA 92646 21752 Pacific Coast Hwy. Huntington Beach, CA 92648 �r ��2- ,i, �cry Attn: Ron Yocrem 1ILL.AIM L. ADAMS ROBERT VAN ZANDT ROBERT MELLO - i20772 Mission Lane j 1512 Ben Lomond Drive 21276 Chesterbrook Drive :: :rairgt;r, Beach, CA 92646 Glendale, CA 91202 Huntington Beach, CA 925,16 1-- 148-027—z4- �,� 148--027-30 148-27-49 fAICHAEL BURKE ����� PATRICIA YAMAZAKI MELVIN FREIT_AS 8142 Pawtucket Dr (6 8111 Ridgefield Drive 042 Niguel Circle _- Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 1408-027-24 148-027-31 149-041-04 WHITE HOLE LABELS 11/21/89 - 4. • 1 (4160d) IGOS DE BOLSA CHICA GARY CORMAN NIICHAEL MARTIN Box 1563 9122 Christine Drive So. Cal. Edison Co. .t.uIitington Beach, CA 92647 Huntington Beach, CA 92646 7333 Bolsa Avenue Annt: Lorraine Faber Westminster, CA 92683 ASSEMBLYMAN FRIZZELLE DEPT. OF FISH & GAME CARL NELSON, DIRECTOR 1.7195 Newhope St. Ste. 201 1416 9th St. 12th Floor Env. Mgmt. Agency-P.W. Fountain Valley, CA 92708 Sacramento, CA 95814 400 Civic Center Dr. W. Attn: Jim Orr Attn: Bob Radovich P.O. Box 4048 Santa Ana, CA 92702-4048 SENATOR BERGESON COASTAL CONSERVANCY F. WILLIAM OLSON, MANAGER 140 Newport Center Dr. 1330 Broadway, Suite 1100 Analysis Sec/Env Mgnt Agency Suite 120 Oakland, CA 94612 12 Civic Center Plaza Newport Beach, CA 92660 Attn: Reed Holderman/ P.O. Box 4048 Attn: Julie Froberg Wendy Eliot Santa Ana, CA 92702-4048 CAL COASTAL COMMISSION CALTRANS/DISTRICT 7 U.S. FISH & WILDLIFE SVC. South Coast Area P.O. Box 2304 Div. of Ecological Service 245 West Broadway, Ste. 380 Terminal Annex 2400 Avila Road Long Beach, CA 90802 Los Angeles, CA 90051 Laguna Niguel, CA 2677 Attn: John Leslie Attn: Susan McCullough Attn: Jack Fancher DEPT. OF THE ARMY CAL. DEPT. OF FISH & GAME RUTH GALLANTER L.A. Dist, Corp. of Engr. Region 5 P.O. Box 66494 %1 Box 2711 245 W. Broadway, Ste. 350 Los Angeles, CA 90066 Angeles, CA 90053-2325 Long Beach, CA 90802 Attn: Cheryl Hill Attn: Fred Worthy, Jr. DAISY PICCIRELLI CALTRANS/DISTRICT 7 CALTRANS/DISTRICT 7 P.O. Box 6202 P.O. Box 2304 P.O. Box 2304 Mesa, Arizona 85206 Terminal Annex Terminal Annex Los Angeles, CA 90051 Los Angeles, CA 90051 Attn: Ron Kozinski Attn: Ron Herdman MARY F. PORCARO ASCON PROPERTIES CABRILLO MOBILEHOME 8135 Foxhall Drive 21602 Surveyor Circle HOMEOWNERS ASSN. Huntington Beach, CA 92646 Huntington Beach, CA 92646 21752 Pacific Coast Hwy. Huntington Beach, CA 92648 Attn: Ron Yc„a em WILLIAM L. ADAMS / ROBERT VAN ZANDT ROBERT MELLO 20772 Mission Lane ✓ 1512 Ben Lomond Drive 21276 Chesterbrook Drive (� Huntington Beach, CA 92646 Glendale, CA 91202 .V Huntington Beach, CA 92646 148-027-24 148-027-30 148-27-49 MICHAEL BURKE ✓ PATRICIA YAMAZAKI / MELVIN FREITAS f' 8142 Pawtucket Drive 8111 Ridgefield Drive 6042 Niguel Circle Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 148-027-24 148-027-31 149-041-04 HARRY ANDERSON CARL BARRERA LAWRENCE MALLON 8136 Pawtucket 240 Old Army Road 9041 Adelia Circle Huntington Beach, CA 926 Scarsdale, NY 10583 Huntington Beach, CA 92646 148-027-25 148-027-32 149-041-13 R3BERT MARLOW BROWN OCCUPANT ;FRED I. GR AES H61 Rhodesia Drive 9021 Rhodesia Drive 1202-B 21st Street ngtonunti Beach, CA 92646 Huntington Beach, CA 92646✓ !Newport Beach, CA 92663✓ 149-041-28 149-041-31 149-041-31 `. ")OLSEY, ANGELO & MILLS LAND AND WATER MR. JACK SPROUL lTCHER 18090 Beach Blvd., Ste Six Calif. Dept. of Fish & Game _A San Joaquin Hills Road Huntington Beach, CA 92648 330 Goldenshore, Ste 50 Newport Beach, CA 92660 Attn: Robert London Moore, Jr. Long Beach, CA 90802 Attn: Roy Woolsey Attn: Environmental Services ORANGE COUNTY FLOOD'✓/ STE-VE BONE MARK SHAPIRO CONTROL DISTRICT Robert Mayer Corporation 21322 Ashburton Cir. P.O. Box 4048 660 Newport Center Drive #105 Huntington Beach, CA 92646 Santa Ana, CA 92702 Newport Beach, CA 92658 114-150-28, 34, 41, 57 PAUL D'ALESSANDRO TRUDY OBRIKAT DON TROY Deputy City Attorney 21871 Newland #131 5272 Allstone Drive City of Huntington Beach Huntington Beach, CA 92646 Huntington Beach, CA 92648 2000 Main Street Huntington Beach, CA 92648 Katherine Stone/Margaret Sohagi KENT M. PIERCE HERB NAKASONE, MGR. Freilich, Stone, Leitner, Carlisle HB/FV Board of Realtors Flood Programs Division The Wilshire Landmark, Ste 1230 19900 Beach Blvd., Ste. I Env. Mgnt. Agency/Flood Ctrl. 11755 Wilshire Blvd. Huntington Beach, CA 92648 P.O. Box 4048 Los Angeles, CA 90025-1518 Santa Ana, CA 92701 Robert Mandic/Gary Gorman Title Energy of California Paul Gonzales, Chief Branch"C" HB Wetlands Conservancy 10537 Santa Monica Blvd. Env. Ping. D.O.T., Dist 12 "'. Box 5903 3rd Floor 2501 Pullman Street tington Beach, CA 92615 Los Angeles, CA 90025 Santa Ana, CA 92705 Attn: Bill Curtis JOHN TOYAMA CHARLES GRANT/TAFFY EVERTS VIRGINIA WARRINGTON 21851 Newland Street Friends of the HB Wetlands 22011 Hula Circle Huntington Beach, CA 92647 21902 Kiowa Lane Huntington Beach, CA 92646-' Huntington Beach, CA 92646 114-481-14 CHARLES PRIDDY LARRY HARTSU KER TERRY HARMON 21872 Kiowa Lane ✓ 9062 Christine Drive ✓ c/o Lucille Harmon Huntington Beach, CA 92646 Huntington Beach, CA 92646 9582 Hamilton Avenue #343 149-022-02 r 114-481-25 Huntington Beach, CA 92646 149-371-23 JOSEPH WHEELOCK j` RAYMOND COLE ASCON PROPERTIES 9232 Christine Drive v 22061 Susan Lane 2675 Irvine Avenue #2-B6 Huntington Beach, CA 92646 Huntington Beach, CA 92646 Costa Mesa, CA 92626 224-495-05 114-481-05 114-150-11 STANLEY HETRICK BYRON TARNUTZER KERRY SHAW 1562 Quail Run 4 Upper Newport Plaza, Ste. 201 21391 Antiqua Lane Santa Ana, CA 92705 j Newport Beach, CA 92660 / Huntington Beach, CA 92646 148-027-58 148-121-03 148-081-13 148-027-31 i'f 149-023-07 j148-027-35 KEITH CAMPBELL KENNETH A. LEE ✓ SCOTT HOOPER/ 8121 Ridgefield 1109 N. Evonda Street 'CARMELA TIJERIMA �r Huntington Beach, CA 92646� Santa Ana, CA 92703 +8131 Ridgefield Drive 'Huntington Beach, CA 92646 . )121-01 148-027-43 149-041-31 i,.-RNARD KAPLAN DARLENE GIACONE ODIE POWELL P.O. Box 5278 8126 Ridgefield Drive 9021 Rhodesia Drive Huntington Beach, CA 92615 Huntington Beach, CA 92646 Huntington Beach, CA 92615 . 148-027-52 148-027-46 149-041-21 ROBERT UJIHARA ROBERT B. MELLO MARCI KLAUSER 2901 Rebano `` 15690 Poppy Way ✓ 9062 Adelia Circle San Clemente, CA 92672 Westminster, CA 92683 Huntington Beach, CA 92646 148-081-11 148-081-12 149-014-02 ROGER GASTEIGER KEITH BELEW GERALD GARTLAND 21421 Antiqua Lane 21401 Antiqua Lane 21832 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 Huntington Beach, CA 92646 149-371-24 149-014-01 KAUSHAL SHARMA / ROBERT McCARGAR 22381 Harwich Lane s/ 21822 Kiowa Lane Huntington Beach, CA 92646 Huntington Beach, CA 92646 OWNER/OCCUPANT 148-027-35 i Foxhall Drive OWNER/OCCUPANT itington Beach, CA 92646 8131 Ridgefield Huntington Beach, CA 92646 i UJ 1 uLI AM W auL-S NAGASH SHETTY 21911 KIGWA LN / a l// 9332 GATEHEAD DR 223_1 i��.RLdIC3 .EiL�IT'-"NGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 ✓ HUNTINGTON BEACH, 3=%2646 1:49-023-08, 149-371-14 149-371-25 (// r PAUL HOWARD GERALD ANDERSON DALE HOLMSEN 2' ',,KIOWA LN 9342 GATESHEAD / P.O. BOX 606 H, 9GTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 t0 CEDAR GLEN, CA 923,2�/ 149-023-09 149-371-15 149-371-26 I/ FARES JAHSHAN ARTEMIO R. RAMIL STEVEN PETERS 21941 KIOWA LANE ✓ 22301 HARWICH LN / 22411 HARWICH LN HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 9264E HUNTINGTON BEACH, CA 92646 149-023-10 149-371-16 149-371-27 DON MCKINNEY JAMES BRADY / MINOO MALEK 21961 KIOWA LANE / 22331 HARWICH LN l 22421 HARWICH LN HUNTINGTON BEACH, CA 92646,E V HUNTINTGON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-023-11 149-371-17 149-371-28 JULIUS PALDI JAMES BRINK HARVEY RUDY 21832 WINDSONG CIR 22321 HARWICH LN P.O. BOX 26134 / HUNTINGTON BEACH, CA 92646 `J HUNTINGTON BEACH, CA 92646 v SANTA ANA, CA 92799 149-023-12 149-371-18 149-371-29 JOHN ACAMPORA YING WILSON BETTY HYATT 21932 KIOWA LN 22331 HARWICH LN 22001 SUSAN LN Hl' -NGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 1• 1-4-01 149-371-19 114-481-01 RICHARD FINLEY ROBERT BELANGER HARRY HOWELL 21912 KIOWA LAME 22341 HARWICH LN 1815 TOYON LANE HUNTINGTON BEACH, CA 92646 ✓ HUNTINGTON BEACH, CA 92646 NEWPORT BEACH, CA 92660� 149-024-02 149-371-20 114-481-02 CHARLES GANT WILLIAM MALKIN CHA.RLE'S HAVER 21902 KIOWA LN 22351 HARWICH LANE 22031 SUSAN LANE HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-024-03 149-371-21 114-481-03 ALLEN GIMENEZ RON WILES CAROL CAGLE 9341 GATESHEAD DR , / 22361 HARWICH LN 21572 OAKBRCOK HUNTINGTON BEACH, CA 92646 V HUNTINGTON BEACH, CA 92646✓ MISSION VIE,_,0, CA 92692 149-371-12 149-371-22 114-481-04 FRANK CHENELIA" TERRY HARMON RAYMOND COLE 9331 GATESHEAD {, 952 HAMILTON AVE 22062 SUSAN �J L/ HUNTINGTON BEA".CH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTT-NGTrN -LAB _-7E46 i.19-3 71-1-3 149-3 7-1-231 CHRISTOPHER VALSAMAKIS STEVEN HURLBUT PAK'r 22081 SUaAN LN 22051 HULA CIR 93-92 ;4AT_RF CO\T 3P- .HUN`.iIIiGTON �BEACH, CA 92646 / HUNTINGTON BEACH, CA 92646 HUNTTNGTCN BEACH, 92F4c 114-481-06 ✓ 114-481-17 v 114-481-27 v BEVERLY REASON KENNETH KIMBALL ELMORE LORANGER 2 SUSAN LN J 22071 HULA CIR 9092 CHRISTINE DR E NGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646,/ HUNTINGTON BEACH, CA 92646 114-481-07 114-481-18 114-481-28 ROBERT WHITE FRANKLIN GOODENOUGH ALIREZA VAZIRI 22072 HULA CIR / 9002 CHRISTINE CIR 66 BALBOA COVES HUNTINGTON BEACH, CA 92646 '✓ HUNTINGTON BEACH, CA 92646 NEWPORT BEACH, CA 92663 114-481-08 114-481-19 114-481-29 v RAYMOND JONES / DON BRUNK MARION GOLFOS 22052 HULA CIR 9012 CHRISTINE DR ,/ 22161 WOOD ISLAND LN HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 114-481-09 114-481-20 114-481-30 GERALD RILEY DON BRUNK JUANITA WEIR 22042 HULA CIR 9012 CHRISTINE LN 8041 NEWMA.N AVE HUNTINGTON BEACH, CA 92646 ✓ HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92647 114-481-10 114-481-20 114-495-01 KATHLEEN MOONEY KOUROSH KHAVARI JAMES IBBOTSON 22101 JONESPORT LN 9022 CHRISTINE DR 9262 CHRISTINE DR HT -NGTON BEACH, CA 92646 / HUNTINGTON BEACH, CA 92646 / HUNTINGTON BEACH, CA 92646 1 j1-11 V 114-481-21 114-495-02 r/ MICHEAL HUNTER WILLIAM KELLER G:J NTER STEVER 22012 HULA CIR 9032 CHRISTINE DR 9252 CHRISTINE DR HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 9264V HUNTINGTON BEACH , CA 92646 114-481-12 114-418-22 114-495-03 MARCEL LOURTIE WILLT_AM BURKE ALBERT NADOW 22001 HULA CIRCLE 9042 CHRISTINE DR P.O. BOX 8747 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 / ANAHEIM, CA 92802 114-481-13 114-481-23 114-495-04 FRANK SZEKULA PHILIP BEUKEMA DENISE LYNCH 22011 HULA CIR J 9052 CHRISTINE DR 9232 CHRISTINE DR HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92625 ✓ HUNTINGTON BEACH, CA 92646 114-481-14 114-48.1-24 114-495-05 � THOMAS LENIHAN HARVEY HENDERSON ROBERT SIMPSCN 22021 HULA CIR / 9U62 CHRISTINE DR 9222 CHRISTINE DR HUNTINGTON BEA-CH, CA 92546 V nWi TINGTCN 3EAC , HUNTTNG_'CN 3EACE, 1-2646 11a-481-i5 81-25 JOHN ANDOR KARL 7:;'ZSCCK= Id 3AGNCLT 9591 ONSET CIR 9012. CHRISTINE DR :5CL HTGHTTDE DR HUNTINGTON BEACH, CA 9254r mT� , _ :.C�i]TTNCTCr] 3E. C::, 7L�1�__]GTC\ 3EAC:., / 114-481-1 ; V 1_�--�31-26 ii4-495-0 7 v✓ r r.E.cBER_ 1 ri r. 9202 CHP:T_ST_NE ' ri-.raTINGTON BEACH, CA 92646 114-495-08 ✓ F.AROUK SHAMOO 9192 CHRISTINE• DR HUNTINGTON BEACH, CA 92646 114-495-09 FRED GALLUCCIO 9182 CHRISTINE DR HUNTINGTON BEACH, CA 92646 114-495-10 ✓ JACK BUFFA 9172 CHRISTINE DR HUNTINGTON BEACH, CA 92646 114-495-11 MARSHALL PAPKE 9162 CHRISTINE DR HUNTINGI N BEACH, CA 92646 114-495-12 EDWARD DREWS 9152 CHRISTINE DR j HUNTINGTON BEACH, CA 92646 114-495-13 GREG BRENNER _ 9142 CTHRISTINE DR HUNTINGTON BEACH, CA 92646 114-495-14 WAYNE MURRY 9132 CHRISTINE DR HUNTINGTON BEACH, CA 92646 114-495-15 GARY C:�RMA-NL 9122 CHRISTINE DR HUNTINGTON BEACH, CA 9646 114-495-16 ' TY OLD HUNTINGTON BEACH TROY LOTHRONGER I JAMES NIEMANN (5> BOX•11,90 120311 BRENTSTONE LANE 8522 SANDY HOOK DR NTZNGTON BEACH, CA 92648 ! HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 :4—:150-73 148-027-55 ✓ 148-081-06 c/ '.4-250-74 ..CC )PERTIES RALPH GUMBERG WAYNE LEWIS ,75 . .,INE AVE 8112 FOXHALL DR 8512 SANDY HOOK DR STA MESA, CA 92626 HNTINGTON BEACH, CA 92646 HNTINGTON BEACH, CA.9 646 4-150-11 148-027-56 148-081-07 . GE COUNTY FLOOD C7N )) DON DICKERSON LAWRENCE AYERS 68116 FOXHALL DR 8502 SANDY HOOK I N HUNTINGTON BEACH, CA 92646;/ HUNTINGTON BEACH, CA 92646 50-328 4 1 14- 50- 148-027-57 148-081-08 .LATE OF CALIFORNIA PUBLIC WORKS STANLEY HETRICK GAY BOYER 1.643 PACIFIC COAST HIGHWAY 1722 E. ARBUTUS AVE v 21441 ANTIGUA � iNTINGTON BEACH, CA 92648 ANAHEIM, CA 92805 HUNTINGTON BEACH, L'A 92646 .14-150-50 114-150-62 148-027-58 148-081-09 ILLS LAND AND WATER CO. DAVID TUCKER JOHN HILL � .0. BOX 7108 8126 FOXHALL DR 21431 ANTIGUA LN IJNTINGTON BEACH, CA 92615 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 .14-150-72 114-150-73 148-027-59 148-081-10 SCON OROPERTIES INC. GEOFFREY HARTSTALL BYRON TARNUTZER 157 .RVEYOR CIRCLE 8132 FOXHALL DR P.O. BOX 246 JN'I'_ _ON BEACH, CA 92626 HUNTINGTON BEACH, CA 92646 / COSTA MESA, CA 92627 14-150-75, 76 & 77 148-027-60 148-121-03 JNTINGTON BREAKERS JEFF REARDON CITY OF HUNTINGTON BEACH .0. BOX 22630 8136 FOXHALL DR 8641 EDISON AVE JNG EACH, CA 90801 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646;/ 48-021-25 148-027-61 V 148-121-04 Xq-kRD H RTLI`E RICHARD BARNES ORANG O. F D ^� OL 35 FOXHALL DR 8142 FOXHALL DR ✓ 2l OLI AV JNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 7 IN N B H 9% 4 48-027-51 148-027-62 48,r12 — 5, 1-48-t21�, 25 BEWRT UJIHASRA JERROLD DUNLAP JOSEPH JOHNSON 01 REBANO 8146 FOX HALL DR `� 9002 ADELIA CIRCLE J kN CLEMENTE, CA 92672 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 9264$ 8-027-52 148-027-63 149-041-17 JSSELL BERG ORANGE C UNTY D O O DAVID ARCHIBALD j L25 FOXHALL DR 21 1 GN A A 9031 RHODESIA DR v/ TT' '`iON BEACH, CA 92646 TI TON EACH, CA 92 48 HUNTINGTON BEACH, CA 92646 8- 33 1 8— 1-03 04 149-041-30 i %RR Y WEBER JR. MILLS LAND AND WATER CO. 21 FOXHALL DR P.O. BOX 7108 8T6�1�T�I BEACH, CA 92646 HUNTINGTON BEACH, CA 92615 L 148-011-06 148-011-07 ODIE POWELL RICHARD DAFFORN GUY MARTIN 9022. -RHOt2SIA DR 21802 KIOWA LANE 21882 KIOWA LN HUNT A`GTCN BEACH, CA 92646 / HUNTINGTON BEAC3, CA 92546 HUNTINGTON BEACH, CA 92646 149-041-31 V 149-012-01 i/ 149-022-01 RICHARD NIPWELL ALVA BATTENFIELD CHARLES PRIDDY 90 'HODESIA DR 21782 KIOWA LANE 2971 BROOKSTONE WAY HL .GTON BEACH, CA 92646 HUTINGTON BEACH, CA 92646 SACRAMENTO, CA 96833 3.49-041-32 149-012-02 149-022-02 JOHN EARLEY DONALD ZALESKI DAVID NELSON 9002 RHODESIA DR 21772 KIOWA LN / 21862 KIOWA LN HUNTINGTON BEACH, CA 92646 L/ HUNTINGTON BEACH, CA 926 6 HUNTINGTON BEACH, CA 92646 149-041-33 149-012-03 149-022-03 FRED GRIMES RINO RUBERTI LEE BRANKOV 202 21ST STREET #B ✓ 21771 KIOWA LN 21841 KIOWA LANE t,/ NEW-PORT BEACH, CA 92663 HUNTINGTON BEACH, CA 92649 HUNTINGTON BEACH, CA 92646 149-041-34 149-013-01 149-023-01 JOHN MONTOYA HILDE GRANTHAM , VINTON MARRIOTT 9032 RHODESIA DR. / 21781 KIOWA LN 21851 KIOWA LANE HUNTINGTON BEACH, CA 9264K HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-041-35 149-013-02 149-023-02 GEORGE HUTTON-POTTS LOUIS KASTORFF ISOLDE WITTMAN 9042 RHODESIA DR ✓ 21801 KIOWA LN 21861 KIOWA LANE Ll HUT' 7GTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 14 -36 149-013-03 149-023-03 VICTOR ZIEGLER RHODA ENGLERT / RICHARD SVOBODA 9001 BERMUDA DR / 21811 KIOWA LN 21871 KIOWA LN HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-011-01 149-013-04 149-023-04 GUY ADAMS DON HOLMES DANIEL MALLOY 9021 BERMUDA DR 21821 KIOWA LN 21881 KIOWA LN i/ HUNTINGTON BEACH, CA 92646 L/ HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-011-02 149-013-05 149-023-05 RONALD JETT CHARLES CARTER �/ JAMES SIMPSON 9031 BERMUDA DR 21831 KIOWA LN 21891 KIOWA LANE HUNTINGTON BEACH, CA 92646 A/ HUNTINGTON BEACH, CA 92646 HUNTINGTON BEACH, CA 92646 149-011-03 149-013-06 149-023-06 ASHURST ARTHLR. ASHLEY KE 9051 BERMUDA DR 21842 KIOWA LANE p'x J ASHr'•:TTNGTC�I EE iC , CA 92546 ✓ HUNTINGTON BEAC CA �6 ' i0'9- ,11-04 149-021-01 1i 1 OYSItfE{z-�0�-v PANT z�gol �ow�4 LN Lecial Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach,CA 92648 114-481-14 Virginia Warrington 22011 Hula Cir. Huntington Beach, CA 92646 FIRST CLASS MAIL �._._.. HUNTwGTON UACH zyi CA0 ° 1l - 4 Legal Notice City of Huntington Beach ��r•,T, „,, M -- • .,..rss-,�:.z-•�.-::e..�.>-.n.�-mac / i � ciF� i Office of the City Clerk P. O.Box 190 P R S 0 R T Huntington Beach,CA 92648 r 149-121 4 CITY O Hry7NT�:�BGH� 8641 E ison Avifff"ems Huntii gtoneach, CA 92646 .RJtYtf EE FIRST CLASS MAIL MN g NOTICE OF PUBLIC HEARING ZONE CHANGE NO . 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach City Council will hold a public hearing in the Council Chamber at the Huntington Beach Civic Center , 2000 Main Street , Huntington Beach, California, on the date and at the time indicated below to receive and consider the statements of all persons who wish to be heard relative to the application described below. DATE/TIME: Monday, February 5 , 7 : 00 PM APPLICATION NUMBER: Zone Change No . 88-18 APPLICANT: City of Huntington Beach LOCATION : The Non-Certified Coastal Area of the City of Huntington Beach generally located on the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River (see attached map) . REOUEST: A public hearing to rezone the 232 acres non-certified coastal area as follows : Change the zoning on a 7 . 0 acre parcel to Visitor Serving Commercial and rezone the remaining 225 acres by affixing a Coastal Conservation Overlay to the existing zoning on the subject property. For further information regarding the specificos cf this zone change application, please contact the City Department of Community Development . ENVIRONMENTAL STATUS : Categorically exempt pursuant to Section 152-6:; of the California Environmental. Quality Act . COASTAL STATUS : This project is in the Coastal Zone . This zone change must be reviewed and approved by the California Coastal Commission . ON FILE : A copy of the proposed request is on file in the City Clerk ' s Office and the Community Development Department , 2000 Main Street , Huntington Beach, California 92648, for inspection by the public . A copy of the staff report Will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after February 2 , 1990 . ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above . If there are any further questions please call Scott Hess , Senior Planner, or Ruth Lambert , Assistant Planner , at 536-5271 . Connie Brockway City Clerk CITY OF HUNTINGTON BEACH Dated: 2;,23,90 \ � ✓ mod` ,/ �i ti✓ \ ,� -10 mot\\ , O !`,=`` 7 / � `�• „'"(' f��.�J�.\ f� ;•^•�� •,- r. \ ,•�^ �, p�D �' ��� OC.SANITATION \ ;'%� •,}" 4G I 'Dy =_�.C�'r• ��777 iRUTN L`R PLV.T _----- b�eG1' Are a VISITOR SERVING COMMERCIAL ------!!AMILTON EXTENSION EXHIBI A. CONSERVATIOII AMC, NONCERTIFIED ItIDUSRTiAL ENERGY PRODUCTION , COASTAL AREAS T i )"ONGION BEACH G4_0:oRNl, >vtNtYNG Uf PARMM IND. ENERGY PROD,/ CONSEPVA'(IONZONE CsAN 6P— 68 — r4o t i c e .. r...>r.•,..n....«.rr.•v,.,..,,,��..-..•....o,co.,.: 1�.I: ;:• .. ._ -- City of Huntington Beach Office of the City Clerk ' {�d i P. O. Box 190 "1p6 r ; Huntington Beach, CA 92648 ' \ ` 114-481-03 CHARLES HAVER, i� 22031 Susan-Lane----- G� Newport Beach, CA 926tk /'0 se° so Z; � � S Cf' l�FFl ' Tel 4t / FIRST CLASS MAIL 1UNTINGTON U4CH Legal Notice City of Huntington Beach Office of the City Clerk ti;\ P. O. Box 190 Huntington Beach, CA 92648 r, _ 114-150-50 114-150-62 r CALIF. PUB IC WORKS 21643 Pad is Coast Hwy. Hunting n Beach, CA 92648 1`- FIRST CLASS MAIL IUNTINGfON MACH Legal Notice City of Huntington Beach =-... - ... .—... �1....... .... ,;:` _ Office of the City Clerk P. O. Box 190 i ii i. :'; :1 ! I{ .!',f < < y• l Huntington Beach, CA 92648 ASCON PROPERTIES 2675 Irvine Avenue #2—B6 Costa Mesa, CA 92626 C '' 114-150-11 �'�;• ""�{ -Rtr J. Legal Notice - City of Huntington Beach Office of the City Clerk 2 b z - - , P. O. Box 190 Huntington Beach, CA 92648q� \ i J..a< ss ..IViw1+ Ca: 1E, :5-f N 114-481- p HAR NDER.S G� 9062 kris ne Dr' �- AVn P_ H tingto each' T9 k 646 Ck IT HIUNTINGTe FIRST CLASS MAIL ON BEACH - Legal Notice City of Huntington Beach _ Office of the City Clerk P. O. Box 190 Huntington Beach, CA 92648 i --. v-r -!•�� G _ � •iAnIr r .n1 �` • 1V,L11ri I r. `I-%J1tl.,t1ICV - 8135 Foxhall Drive Huntington.Beach, CA 92646 \ y \ \T. FIRST CLASS MAIL ��, ,,,,il�!��„��„�,►�,,,��„�,,,il,�,i,�!i,ll�i i WNTINGTON MACH Legal Notice F City of Huntington Beach 3's '?? • ' } y�. _ - Office of the City Clerk ' s �^ '� 2 �" f� `~Ls P. 0. BOX 190 !; `r Y l Huntington Beach, CA 92648 It 144-481°�1 o �IU BETTY I- TT ^ ° U 22001 s Lane ; ' d `n Hu • gton%each, 2 46 `V • JJ � -- - FIRST CLASS MAIL .---- i a y . 7 _,'� _; .♦ t _ _ _ '•' .r Est. ISO 00, O.C.SANITATION dip VAN OL - 1 &vb'ect Area �r���cl Zo✓�;h� VISITOR, SERVING COMMERCIAL -----HAMILTON EXTENSION EXH1BiT A i ' :•�`:' CONSEnVAT 1011 Afgb, NONCERTIFIE IfIDUSRT IAL ENERGY PRODUCTION , COASTAL ARFJkS t;-WNGION BL4CH CkIF 4 ZONE: C ,I{�{ N 6 E *- � 16 PUNMNG CEPIRIMEM 1 ND• ENERGY PI�Cu,/ CONSERVATION Y■ I w � . NOTICE OF PUBLIC HEARING ZONE CHANGE NO. 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach City Council will hold a public hearing in the Council Chamber at the Huntington Beach Civic Center , 2000 Main Street, Huntington Beach, California, on the date and at the time indicated below to receive and consider the statements of all persons who wish to be heard relative to the application described below. DATE/TIME: Monday, February 5, 7 : 00 PM APPLICATION NUMBER: Zone Change No. 88-18 APPLICANT: City of Huntington Beach LOCATION: The Non-Certified Coastal Area of the City of Huntington Beach generally located on the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River (see attached map) . REQUEST: A public hearing to rezone the 232 acres non-certified coastal area as follows : Change the zoning on a 7 . 0 acre parcel to Visitor Serving Commercial and rezone the remaining 225 acres by affixing a Coastal Conservation Overlay to the existing zoning on the subject property. For further information regarding the specifics of this zone change application, please contact the City Department of Community Development . ENVIRONMENTAL STATUS : Categorically exempt pursuant to Section 15265 of the California Environmental Quality Act . COASTAL STATUS: This project -is in the Coastal Zone. This zone change must be reviewed and approved by the California Coastal Commission. AW IF ON FILE: A copy of the proposed request is on file in the City Clerk' s Office and the Community Development Department , 2000 Main Street, Huntington Beach, California 92648, for inspection by the public . A copy of the staff report will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after February 2, 1990 . ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If there are any further questions please call Scott Hess , Senior Planner, or Ruth Lambert, Assistant Planner, at 536-5271 . Connie Brockway City Clerk CITY OF HUNTINGTON BEACH J Legal Notice \ _ City of Huntington Beach - Office of the City Clerk P. O. Box 190 is Huntington Beach,CA 92648 - 149-022-02 CHARLES PRIDDY 2971 Brookstone Way Sacramento, CA 96833 5. FIRST CLASS MAIL 06/£Z/Z :Pa4PQ I I z 10 OC SANITATION I ` O Q p 7RGTN CYTPUM \ .0 F,C 1 f Are a �r�p�ec� Zoh+erg VISITOR SERVING COMMERCIAL -----HAMILTON EXTENSION EXNiBiT A A, CONSERVAT I011 ,[W. NONCERTIFIED .00 II�IIIllII1Ill1Imm(IllIIIIL11fIllfI1IIItI1It(I ItIDUSRT IAL ENERGY PRODUCTION R COASTAL AREAS i- ' 10-JN7"G10N BEACH CCRA14A O f ,►{..j(A k 6� � `� 113 PUNNWG OE?ARIMEM IND, ENERGY PIt0u,/ CONSERVATION NOTICE OF PUBLIC HEARING ZONE CHANGE NO. 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach City Council will hold a public hearing in the Council Chamber at the Huntington Beach Civic Center, 2000 Main Street, Huntington Beach, California, on the date and at the time indicated below to receive and consider the statements of all persons who wish to be heard relative to the application described below. DATE/TIME: Monday, February 5, 7 : 00 PM APPLICATION NUMBER: Zone Change No. 88-18 APPLICANT: City of Huntington Beach LOCATION: The Non-Certified Coastal Area of the City of Huntington Beach generally located on the inland side of Pacific Coast Highway between .Beach Boulevard and the Santa Ana River (see attached map) . REQUEST: A public hearing to rezone the 232 acres non-certified coastal area as follows : Change the zoning on a 7 . 0 acre parcel to Visitor Serving Commercial and rezone the remaining 225 acres by affixing a Coastal Conservation Overlay to the existing zoning on the subject property. For further information regarding the specifics of this zone change application, please contact the City Department of Community Development . ENVIRONMENTAL STATUS: Categorically exempt pursuant to Section 15265 of the California Environmental Quality Act . COASTAL STATUS: This project is in the Coastal Zone. This zone change must be reviewed and approved by the California- Coastal Commission. ON FILE: A copy of the proposed request is on file in the City Clerk' s Office and the Community Development Department , 2000 Main Street , Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after February 2, 1990 . ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above . If there are any further questions please call Scott Hess, Senior Planner, or Ruth Lambert, Assistant Planner, at 536-5271 . Connie Brockway City Clerk CITY OF HUNTINGTON BEACH Dated: 2/23/90 -�- ---- -- ----- - - - ---- - - Legal Notice City of Huntington Beach " Office of the City Clerk P. 0. Box 190 . Huntington Beach,CA 92648 �. 114-481-14 FRANK SZEKULA 22011 Hula Circle Huntington Beach, CA 92646 5 K4.R1111RR TIM 3249 LIM 1St CA W*04 Ji RETURN TO SENDER FIRST CLASS MAIL I 00- -gy �. ,✓�•, � � �� p t / PS i, O.C.SANITATION \ \ ��C� I T�E.�T�G L.`IT P �— NT \ • -, r J o` rCO p?` , �`;�� "Ll .ln' , I"� J / ) f, J. ., i J J JJ. f, 1 JJ.•Jj..:/ J bvb'eet Area i ?vpn�ecl yl EXHIBIT A VISITOR, SERVING COMMERCIAL -----I!AMILTON EXTENSION i ' CONSERVAT1011 NONCERTIFIE ItIDUSRT IAL ENERGY PRODUCTION , COASTAL AR S !;JNTNGTON EEJKN C LCFOR NV 1 ND. ENERGY PROD,/ CONSERVATION ZONE: �i A � � Yf 113 PL,,/NMNG OEPARIMENT 4 NOTICE OF PUBLIC HEARING ZONE CHANGE NO. 88-18 (Non-Certified Coastal Area) NOTICE IS HEREBY GIVEN that the Huntington Beach City Council will hold a public hearing in the Council Chamber at the Huntington Beach Civic Center, 2000 Main Street, Huntington Beach, California, on the date and at the time indicated below to receive and consider the statements of all persons who wish to be heard relative to the application described below. DATE/TIME: Monday, February 5, 7:00 PM APPLICATION NUMBER: Zone Change No. 88-18 APPLICANT: City of Huntington Beach LOCATION: The Non-Certified Coastal Area of the City of Huntington Beach generally located on the inland side of Pacific Coast Highway between Beach Boulevard and the Santa Ana River ' (see attached map) . REQUEST: A public hearing to rezone the 232 acres non-certified coastal area as follows : Change the zoning on a 7 . 0 acre parcel to Visitor Serving Commercial and rezone the remaining 225 acres by affixing a Coastal Conservation Overlay to the existing zoning on the subject property. For further information regarding the specifics of this zone change application, please contact the City Department of Community Development . ENVIRONMENTAL STATUS: Categorically exempt pursuant to Section 15265 of the California Environmental Quality Act . COASTAL STATUS: This project is in the Coastal Zone. This zone change must be reviewed and approved by the California Coastal Commission. ON FILE: A copy of the proposed request is on file in the City Clerk' s Office ,and the Community Development Department , 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at City Hall or the Main City Library (7111 Talbert Avenue) after February 2 , 1990 . ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If there are any further questions please call Scott Hess , Senior Planner, or Ruth Lambert, Assistant Planner, at 536-5271 . Connie Brockway City Clerk CITY OF HUNTINGTON BEACH -- Dated: 2/23190- - -- -- - -- ---- — -- ---- -- -- -- - Legal Notice City of Huntington Beach -\ - Office of the City Clerk P. O. Box 190 ` _ _- Huntington Beach,CA 92648 r 148-121-03 BYRON TARNUTZER P.O. Box 246 Costa Mew •{ is i•j_::�::,".i�. _ ?L FIRST CLASS MAIL a Legal Notice City of Huntington Beach Office of the City Clerk P. O. Box 190 Huntington Beach,CA 92648 114-481-14 V i rMi a Warrington 22CLI-1 Hula Cir.. Huntington Beach, CA 92646 WARR4 8 �'T EXFIREO $f9t) TI P© T Ef CiC� 6 5-77s8 T13 #3� J. REQUEST FOR CITY COUNCIL-,ACT Date March 19 , 1990 Submitted to: Honorable Mayor and City Council Members Submitted by: Michael Uberuaga, City Administrator__tz 7_ Prepared by: Michael C. Adams, Director, Community Development iUW Subject: ZONE CHANGE NO. 88-18 (NON-CERTIFIED WHITEHOLE AREA) Consistent with Council Policy? [X] Yes [ ] New Policy or Exception XpJ,, /!� Statement of Issue, Recommendation,Analysis, Funding Source,Alternative Actions,Attachments: J STATEMENT OF ISSUE' At the February 20, 1990 meeting the City Council closed the public hearing on Zone Change No. 88-18 and requested minor modifications to Ordinance No. 3033 and Resolution No. 6119 . RECOMMENDATION• Approve Resolution No. 6119 and Ordinance No. 3033, as amended. ANALYSIS• At the February 20, 1990 meeting, the City Council approved minor modifications to Zone Change No. 88-18 . These changes include acreage clarifications and amendments to the proposed suffix designations on the Edison and Tank Farm sites . The Edison site consists of a 55 acre parcel with a suffix modification from CC (Coastal Conservation) to CZ (Coastal Zone) . The Tank Farm site consists of a 28 acre parcel with a suffix modification from CC (Coastal Conservation) to CZ (Coastal Zone) . These modifications have been incorporated into Sections 8 and 9 of Ordinance No. 3033 . Resolution No. 6119 has been amended to include a statement noting that the Resolution shall become effective on the effective date of the Ordinance. FUNDING SOURCE- No funds required. aa P10 5/85 ALTERNATIVE ACTION• Do not approve Resolution No. 6119 and Ordinance No. 3033, as amended. ATTACHMENTS 1. Ordinance No. 3033 2 . Resolution No. 6119 MU:MA:REL:kla (5150d) MILLS LAND & WATER COMPANY SINCE 1901 February 5 , 1990 Hon. Tom Mays, Mayor HAND DELIVERED and City Council Members City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: City Council Action Zone Change No. 88-18 2/05/90 Council Meeting; Agenda Item: D-1 Honorable Mayor and Council Members: Before you take action on Zone Change No. 88-18 at your meeting this evening, there are a number of errors in the staff report and the proposed zoning ordinance which we think should be brought to your attention. Specifically, the property described in Area 2 of the staff report Section 2 of the proposed ordinance should be approximately 35 acres instead of 28. Further, only the State (Caltrans) parcels are now zoned RA-0. The 7 . 15± acres owned by Mills Land & Water Company westerly of the Orange County Flood Control Channel are presently zoned MI-A-0, not RA-0 as indicated in the staff report and draft of the ordinance. Also, the description of the Mills parcel in Section 3 of the proposed ordinance is incorrect. . Accordingly, insofar as the staff report and ordinance make refer- ence to the letter designations on the attached Sectional District Zoning Map 13-6-11 , they are further in error. We should also point out that the proposed Zone Change No. 88-18 does not contain an "Administrative Claims Procedure for Resolving Wetlands Designation and ' Takings' Claims" as proposed by the City' s outside legal counsel. We believe the staff proposal on this point contains a serious error. In their "second opinion" to the City Attorney' s "taking" advisory on the proposed rezoning, the authors Stone and Terzian made certain recommendations which they claimed would minimize the City' s liabil- ity in respect to the "Conservation" designation placed on the Mills and other properties in the Land Use Plan and rezoning. Among other things, outside counsel suggested the adoption of what they termed. (714) 841-78W POST OFFICE BOX 7108 - HUNTINGTON BEACH - CALIFORNIA 92615 r Hon. Tom Mays, Mayor and City Council Members February 5 , 1990 - page two an "Administrative Claims Procedure" contemplated to provide property owners with a means to challenge the depiction of their land as so-called "wetlands" and thereby present a claim that the "Conservation" designation constituted a taking for which the owners would be compensated. Staff now recommends that the City Council adopt the "CC" suffix to the existing zoning, partly on the theory that it incorporates such a procedure. Planning staff advances this notion at page two of its report: "A procedure for removal of the CC suffix is detailed in the Ordinance Code. " Removal of this suffix requires a zone change with findings approved by the Planning Commission, City Council, and Coastal Commission. This procedure is explicit for the CC suffix and allows applicants to challenge the economic viability of the permitted uses and the designation as wetlands as sug- gested in the second [Stone/Terzian] legal opinion. " This is simply not correct. First, the City' s Ordinance Code makes no provision for removal of the "CC" suffix either on grounds that it was based on an erron- eous description of the property as "wetlands" , or that it prevents the owner from making any economically-viable use of the land. In fact, these issues are not even relevant to the findings which the Code requires to be made for removal of the "CC" suffix. See Huntington Beach Ordinance Code Section 9422. 3 . Second, the "CC" suffix can only be removed upon findings that the underlying zoning district conforms to the coastal element of the City' s Land Use Plan, and is in accordance with the policies of the California Coastal Act. Under these circumstances, staff' s proposal clearly fails to provide an administrative forum in which the impacted property owners could realistically present their cases for removal of the suffix. Indeed, the City' s Ordinance Code actually mandates the formidable requirement that the property owner must pursue a legislative amendment to the City' s General Plan and thereafter seek approval of any change from the Coastal Commission. Accordingly, if a property owner desires to have the restrictive "CC" suffix removed, he has the burden of initiating and carrying through a "replay" of the entire land-use planning process that set up the "Conservation" designation in the first place. It goes almost without saying that any attempt by a single property owner to reverse the results of the 10-year LUP process would amount to a veritable exercise in futility. Thus, any reliance on the procedural requirements contained in I Hon. Tom Mays, Mayor and City Council Members February 5 , 1990 - page three Section 9422 . 3 of the Code to provide for any perceived claims procedure for dealing with "wetlands" and determination of "takings" is entirely erroneous and misplaced. It also appears that the proposed "CC" suffix is inherently incon- sistent and inappropriate to the existing M1-A-0 zoning on the Mills property. Before acting to implement what staff acknowledges to be a hybrid zoning without precedent, we would urge Council mem- bers to study the possible consequences of such zoning. As we have stated before, it is critical that the proposed "M1-A-0-CC" zoning be clarified as much as possible, in close consultation with the Coastal Commission and the Department of Fish & Game. We firmly believe the City must act in concert with other respon- sible agencies in the adoption of any new zoning on the Mills prop- erty. Reference is made to our letter of January 3 , 1990 to the mayor and council members for particulars. In this connection, we think it will be essential for the City Council to have in mind the specific types of development that would be allowed in any form of "CC" zoning before taking action on Zone Change No. 88-18 . As of the present time, this information has not been forthcoming. In closing, we urge each of you to seek out the necessary informa- tion to enable you to ascertain how the proposed zoning will work before you adopt it. As always, we are available to answer any questions you may have and to review the matter with you. For Mills Land & Water Company, ROBERT LONDON ORE, J . RLM/ar ao 2746/16 REQUEST FqR CITY COUNCIL ACTION ACD 70 2'/441Sa Pe'-4Vs v -fin Date February 20. 1990 /s/ Submitted to: Honorable Mayor and City Council Members � ��► Submitted by: Paul E. Cook, City Administrator I' Prepared by: Michael Adams, Director of Community Developme t Subject: ZONE CHANGE NO. 88-18 (NON-CERTIFIED WHITEHOLE AREA) &4d, 3c33 Consistent with Council Policy? [g] Yes [ ] New Policy or Exception /Qw (. i 19 Statement of Issue, Recommendation,Analysis, Funding Source,Alternative Actions,Attachments: 2 STATEMENT OF ISSUE• At the February 5, 1990 meeting, the City Council continued the open public hearing on Zone Change No. 88-18 to the meeting of February 20, 1990. The item was continued to allow the entire Council to consider the issue. RECOMMENDATION: Approve Zone Change No. 88-18, with modifications, to designate a 7.0 acre parcel as Visitor Serving Commercial, and to apply the Coastal Conservation (CC) suffix to the existing zoning on the remaining 225 acres, in order to achieve consistency with the adopted Land Use Plan and to complete certification of the subject area and the Local Coastal Program. Approve Resolution No. 6011 and Ordinance No. 3033 pursuant to said Zone Change. ANALYSIS: On February 5, 1990, written comments were received by staff and Council addressing this item (Attachments 1 and 3) . Staff has reviewed these comments and has made the appropriate changes. Changes pursuant to Attachment 1 include corrections in acreage calculations for Sections 2 and 3 of Ordinance No. 3033 . Staff has previously responded to issues raised regarding conformity between the land use plan and zoning and the precedence of the CC suffix. Staff responses to Attachment 3 are included with that attachment. FUNDING SOURCE: No funds required. ALTERNATIVE ACTION• The City Council may continue Zone Change No. 88-18 or deny Zone Change No. 88-18, with modifications, as approved by Planning Commission on December 5, 1989 . P10 5/85 ATTACHMENTS: 1. Written communication dated February 5, 1990, from Robert L. Moore of Mills Land and Water Company 2 . Ordinance No. 3033, page 2, revised. 3 . Written comments submitted February 5, 1990, from Gary Gorman of the Huntington Beach Wetlands Conservancy. 4 . Amended Proposed Zone Change Map to staff report dated February 5, 1990 . PEC:MA:SH:REL: lab I RCA 2/20/90 -2- (4781d) MILLS LAND & WATER COMPANY SINCE 1901 February 5, 1990 Hon. Tom Mays, Mayor HAND DELIVERED and City Council Members City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Re: City Council Action Zone Change No. 88-18 2/05/90 Council Meeting Agenda Item: D-1 Honorable Mayor and Council Members : Before you take action on Zone Change No. 88-18 at your meeting this evening, mere are a number of errors in the staff report and the proposed zoning ordinance which we think should be brought to your attention. Specifically, the property described in Area 2 of the staff report Section 2 of the proposed ordinance should be approximately 35 acres instead of 28 . Further, only the State (Caltrans) parcels are now zoned RA-0. The 7 . 15± acres owned by Mills Land & Water Company westerly of the Orange County Flood Control Channel are presently zoned M1-A-0, not RA-0 as indicated in the staff report and draft of the ordinance. Also, the description of the Mills parcel in Section 3 of the proposed ordinance is incorrect. Accordingly, insofar as the staff report and ordinance make refer- ence to the letter designations on the attached Sectional District Zoning Map 13-6-11 , they are further in error. We should also point out that the proposed Zone Change No. 88-18 does not contain an "Administrative Claims Procedure for Resolving Wetlands Designation and ' Takings ' Claims" as proposed by the City' s outside legal counsel. We believe the staff proposal on this point contains a serious error. In their "second opinion" to the City Attorney' s "taking" advisory on the proposed rezoning, the authors Stone and Terzian made certain recommendations which they claimed would minimize the City' s liabil- ity in respect to the "Conservation" designation placed on the Mills and other properties in the Land Use Plan and rezoning. Among other things, outside counsel suggested the adoption of what they termed (714) 841-7898 ' POST OFFICE BOX 7108 - HUNTINGTON BEACH - CALIFORNIA 92G1 S •�. , s Hon. Tom Mays, Mayor and City Council Members February 5 , 1990 - page two an "Administrative Claims Procedure" contemplated to provide property owners with a means to challenge the depiction of their land as so-called "wetlands" and thereby present a claim that the "Conservation" designation constituted a taking for which the owners would be compensated. Staff now recommends that the City Council adopt the "CC" suffix to the existing zoning, partly on the theory that it incorporates such a procedure. Planning staff advances this notion at page two of its report: "A procedure for removal of the CC suffix is detailed in the Ordinance Code. " Removal of this suffix requires a zone change with findings approved by the Planning Commission, City Council, and Coastal Commission. This procedure is explicit for the CC suffix and allows applicants to challenge the economic viability of the permitted uses and the designation as wetlands as sug- gested in the second [Stone/Terziar.] legal opinion. " This is simply not correct. First, the City' s Ordinance Code makes no provision for removal of the "CC" suffix either on grounds that it was based on an erron- eous description of the property as "wetlands" , or that it prevents the owner from making any economically-viable use of the land. In fact, these issues are not even relevant to the findings which the Code requires to be made for removal of the "CC" suffix. See Huntington Beach Ordinance Code Section 9422 . 3 . Second, the "CC" suffix can only be removed upon findings that the underlying zoning district conforms to the coastal element of the City' s Land Use Plan, and is in accordance with the policies of the California Coastal Act. Under these circumstances, staff' s proposal clearly fails to provide an administrative forum in which the impacted property owners could realistically present their cases for removal of the suffix. Indeed, the City' s Ordinance Code actually mandates the formidable requirement that the property owner must pursue a legislative amendment to the City' s General Plan and thereafter seek approval of any change from the Coastal Commission. Accordingly, if a property owner desires to have the restrictive "CC" suffix removed, he has the burden of initiating and carrying through a "replay" of the entire land-use planning process that set up the "Conservation" designation in the first place. It goes almost without saying that any attempt by a single property owner to reverse the results of the 10-year LUP process would amount to a veritable exercise in futility. Thus, any reliance on the procedural requirements contained in Hon. Tom Mays, Mayor and City Council Members February 5 , 1990 - page three Section 9422 . 3 of the Code to provide for any perceived claims procedure for dealing with "wetlands" and determination of "takings" is entirely erroneous and misplaced. It also appears that the proposed "CC" suffix is inherently incon- sistent and inappropriate to the existing M1-A-O zoning on the Mills property. Before acting to implement what staff acknowledges to be a hybrid zoning without precedent, we would urge Council mem- bers to study the possible consequences of such zoning. As we have stated before, it is critical that the proposed "M1-A-0-CC" zoning be clarified as much as possible, in close consultation with the Coastal Commission and the Department of Fish & Game. We firmly believe the City must act in concert with other respon- sible agencies in the adoption of any new zoning on the Mills prop- erty. Reference is made to our letter of January 3 , , 1990 to the mayor and council members for particulars . In this connection, we think it will be essential for the City Council to have in mind the specific types of development that would be allowed in any form of "CC" zoning before taking action on Zone Change No. 88-18 . As of the present time, this information has not been forthcoming. In closing, we urge each of you to seek out the necessary informa- tion to enable you to ascertain how the proposed zoning will work before you adopt it. As always, we are available to answer any questions you may have and to review the matter with you. For Mills Land & Water Company, ROBERT LONDON ORE, J . RLM/ar � •.,. ♦ .♦!P� a •� ••��.• • • /• ,t•�``♦' �'7 ♦per-iQ�•'-!•�♦.♦�;,��/•/~ :�• ♦ nnwu ••n • , iq � �h • r / � • � `����♦1.•• '♦L 'ii'-i '-i�•••O•• �C�'i�'i'•'4'-i -i-i-iG f.�' A �� i�.�•`♦O��♦♦--�i'-ice♦,'-i, 'ice♦�♦V�0 4'!i•p�'-��'i��'-i�♦'p•••�•♦�'A • • . .��.;,,♦-i� •.,� spy,! r r THE FOLLOWING COMMENTS WERE SUBMITTED TO CITY STAFF BY GARY GORMAN OF THE HUNTINGTON BEACH WETLANDS CONSERVANCY. THESE COMMENTS REFERENCE THE STAFF REPORT OF DECEMBER 5, 1989 TO THE PLANNING COMMISSION. THIS REPORT IS ATTACHMENT 5 OF THE STAFF REPORT TO THE CITY COUNCIL OF FEBRUARY 5, 1990. COMMENTS ON CITY'S STAFF REPORT Concerning Zone Change No. 88-18 Question 1. Area One in Attachment No. 2 is designated as VSC. The proposed zoning on Attachment No. 1 is also VSC but in the text it is VSC-FP2-CZ. What gives? Response The subject map has been corrected. The proposed zoning for this parcel is VSC-FP2-CZ . Ouestion 2 . On Attachment No. 1, the Edison Plant has the CC suffix. Mike Martin would probably prefer a CZ suffix instead. I imagine he would like it on the tank farm as well. Response The proposed zoning for this parcel, as recommended by the Planning Commission, is M2-0-FP2-CC. However, given the possibility of expansion to the Edison facility, a CZ suffix in lieu of the CC suffix may be an appropriate modification to the zoning for this parcel. It may also be appropriate to modify the proposed zoning for the Edison Tank Farm property by appending a CZ suffix rather than a CC suffix. Ouestion 3 . On Attachment No. 2, the southeast corner of Edison' s tank farm is zoned M1-A-FP2-CC. It does not show up on Attachment No . 2 . Why? This probably should also be changed to a CZ suffix. Response Attachment No. 2 refers to the certified land use plan for the whitehole area and does not depict zoning. Please see the response to Question No. 2 regarding the change to the CZ suffix. t ' 4uestion 4 . Concerning Section 9422. 6(d) ; please add the word "restoration" before plans. The 1985 ordinance, 969 . 7. 3 (c) (2) , approved by the Coastal Commission states that new flood control facilities can be approved only in conjunction with wetland restoration. Response Section 969 . 7 .3(c) (2) has been amended as Section 9422 . 6(d) . The revised section allows new flood control facilities, submit to a Conditional Use Permit, where necessary for public safety and to protect existing development in the flood plain. Mitigation measures for such facilities, should they be necessary, are detailed in Section 9422 . 10 through 9422 . 17 . ��i•�j��♦Wf4 y �� .a ;►••'i•.�'�♦•��a�= ,��ti�` 1 � �i� � and.y • � ♦�♦,P♦ �•�a�i �♦�♦�♦ •.���j��. � ♦�♦♦♦�♦♦�+tea� ♦ � .+I 04 wn 'p'��'��i� ♦♦♦���i i = �i.'ice•.��• a � .♦�� ••.�•A�is' � , \ •i.COI♦♦♦.�i'i���;.�•. • .•`fir♦ `.i%� � r ,, ,'ts•��Jpp �� O.C.SAN710H IR GTStLVTULY T PL.INf 2-2 ,:�j� it+�- �' •Y Jj..J:J•''�V'S?j'�rl' j''j•�'�:iJ�•'/!� ~'f•t�'.;� �•;%r��'. :f�:v1• .� \' l ;.•' iJ•i..%•., �rJ�J.•J.1. �•1'.. •J�.J' . .::,"•�;� � 1 /.1C(•((��(�� 11.E �.,�1: :J, �- Llt i tYY••ll.0 r i &vV eet Are a VISITOR SERVING CONMERCl K -----I!AMILTON EXTENSION EXHIBIT A CONSERVAT IN Ailt, NONCERTIFIED INDUSRTIAL C`1i-:RGY p!zoDUCTjell , COASTAL AREAS M,NIWGION BEACH C4l PLANNING OEPARIMEM i ID• ESE RGY CONSERVATION /V$ REQUEST FOR CITY COUNCIL ACTION Date February 5, 1990 Submitted to: Honorable Mayor and City Council Members Submitted by: Paul E. Cook, City Administrator C. Prepared by: Michael Adams, Director of Community Developmen Subject: ZONE CHANGE NO. 88-18 (NON-CERTIFIED WHITEHOLE AREA) 6CD ;'3 n33 Res -tf-4,07� 6 ii 9 Consistent with Council Policy? PC] Yes [ ] New Policy or Exception Statement of Issue, Recommendation,Analysis, Funding Source, Alternative Actions,Attachments: STATEMENT OF ISSUE• At the October 16, 1989 meeting, the City Council directed staff to refer Zone Change No. 88-18 for the subject area to the Planning Commission for action. The Planning Commission approved the zone change, with modifications, at the December 5, 1989 meeting. Pursuant to City procedure, the zone change is transmitted to Council for action. RECOMMENDATION• Approve Zone Change No. 88-18, with modifications, to designate a 7 . 0 acre parcel as Visitor Serving Commercial, and to apply the Coastal Conservation (CC) suffix to the existing zoning on the remaining 225 acres, in order to achieve consistency with the adopted Land Use Plan and to complete certification of the subject area and the Local Coastal Program. Approve Resolution No. 6011 and Ordinance No. 3033 pursuant to said Zone Change. ANALYSIS• On June 2, 1986, the City Council adopted a Land Use Plan for the non-certified coastal zone area along Pacific Coast Highway, between Beach Boulevard and the Santa Ana River. On April 13, 1987 the California Coastal Commission certified the Land Use Plan as submitted by the City. The Land Use Plan, as certified, designates approximately 7. 0 acres as Visitor Serving Commercial, 125 acres as Conservation, 83 acres as Industrial Energy Production and 17 . 0 acres as Industrial Energy Production/Conservation. The complete project history is discussed in detail elsewhere (Attachment 3, pgs 2-4) . On October 16, 1989, Council directed staff to refer the subject zone change to the Planning Commission for action. Subsequently, the Planning Commission approved the zone change, with modifications, at the December 5, 1989 meeting. At that meeting staff presented information detailing the project ' s history and describing the proposed zone change at length. This report is included in Attachment 3 . P10 5/85 Staff also presented and recommended modifications to the proposed zone change. These revisions were made after careful consideration of the need to achieve consistency within the General Plan and Ordinance Code, the Coastal Commission' s recommendations for a Certified Local Coastal Program for the subject area, and the interests of several parties. Staff recommends that a 7. 0 acre parcel be designated Visitor Serving Commercial and on the remaining 225 acres the existing zoning remain and the Coastal Conservation (CC) suffix be applied. This change will accomplish the goal of General Plan consistency and would be advantageous for the following reasons : 1. The CC suffix can be appended to any base district to denote and protect environmentally sensitive areas . This suffix takes precedence over any other base district designation (see Attachment No. 3, appendix 5) . 2 . Application of the CC suffix may satisfy the Coastal Commission' s requirement that the property be zoned consistent with the Certified Land Use Plan. 3 . A procedure for removal of the CC suffix is detailed in the Ordinance Code. Removal of this suffix requires a zone change with findings approved by the Planning Commission, City Council, and Coastal Commission. This procedure is explicit for the CC suffix and allows applicants to challenge the economic viability of the permitted uses and the designation as wetlands as suggested in the second legal opinion. 4 . In addition to standard findings of compatibility and consistency, additional findings must be made to remove this suffix. These are detailed in the Ordinance Code and require the proposed change be justified for that site after consideration of alternative locations . 5 . Mitigation measures are defined and described in the Ordinance Code should a CC suffix be removed. In summary, staff believes that these zone changes will bring the land use plan and the zoning into conformance for the subject area. In addition, the recommendations of the Coastal Commission would be met and the existence of a suffix removal process, as described in the Ordinance Code, provides the affected property owners with a mechanism to challenge this zone change. Staff views the modifications to this zone change as an interim measure to bring the City into conformance with State Planning Law while the newly formed wetlands coalition discusses various options for the subject property. The first meeting of the coalition has been scheduled for early January. A report to Council detailing the coalition' s recommendations is anticipated three to four months following the onset of discussions . RCA 1-22-90 -2- (4477d) i Staff recommends that the City Council approve and adopt Zone Change No. 88-18 as modified to designate 7. 0 acres Visitor Serving Commercial and to add the Coastal Conservation overlay suffix to the existing zoning on the remaining 225 areas of the subject property, with the following findings and forward to the California Coastal Commission for final approval. FINDINGS FOR APPROVAL: 1. The proposed zone change as shown on attached map (Exhibit A) is consistent with the General Plan designations adopted by Council and the Coastal Commission because it recognizes the goals of the Land Use Plan. 2 . The proposed zone change as shown on attached map (Exhibit A) is compatible with surrounding General Plan designations of Medium Density Residential and Low Density Residential . 3 . The proposed zone change as shown on attached map (Exhibit A) will not create adverse impacts on the surrounding uses because it is designed to protect the identified wetlands. 4 . The proposed zone change as shown on attached map (Exhibit A) is consistent with the goals and policies of the Coastal Commission and the City' s Coastal Land Use Plan and reconciles the inconsistency between the Land Use Plan and Implementation Plan. FUNDING SOURCE: No funds required. ALTERNATIVE ACTION: The City Council may continue Zone Change No. 88-18 or deny Zone Change No. 88-18, with modifications, as approved by Planning Commission on December 5, 1989 . ATTACHMENTS. 1. Proposed Zone Change Map (as recommended by staff) . 2 . Area Map of Approved Land Use Plan. 3 . Ordinance No. 3033 4 . Resolution No. 6011 5. Planning Commission staff report and Addendum (dated December 5, 1989) . PEC:MA:SH:REL: lab RCA 1-22-90 -3 - (4477d) ORDINANCE NO. v J J ZONE CHANGE NO. 88-18, AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH ORDINANCE CODE BY AMENDING THE SECTION 9061 THEREOF TO PROVIDE 'FOR A CHANGE OF ZONING WITHIN VARIOUS DISTRICTS WITHIN THE "WHITEHOLE" AREA OF THE COASTAL ZONE WHEREAS, Pursuant to the State Planning and Zoning Law, the Huntington Beach Planning Commission and Huntington Beach City Council have had separate public hearings relative to Zone Change No. 88-18 wherein both bodies have� carefully considered all information presented at said hearings, and after due consideration of the findings and recommendations of the Planning Commission and i all evidence presented to -the City Council, the City Council finds that such zone change is roper, and consistent with the Huntington Beach General Plan. NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain to amend §9061 of the Ordinance Code as follows : SECTION 1 . The following described real property consisting of approximately 7 acres, generally located on the inland side of Pacific Coast./Highway at the northeast corner of the intersection of Beach Bouley� rd and Pacific Coast Highway and extending east along p Pacific Cost Highway to Newland Street, in the City of Huntington Beach, Cdunty of Orange, State of California, being that portion of fractional Section 13 and that portion of fractional Section 24 all in ToVship 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bols s, per map recorded in Book 51, Page 14 of Miscellaneous Maps in he office of the Recorder of said county, and designated as "A" -1- on Exhibit "l" (overlay to District Map 14 of the Huntington Beach Ordinance Code) , is hereby changed from RA-O-FP2 (Residential Agricultural within an Oil District within a Flood Plain) to VSA-CZ-FP2 (Visitor Serving Commercial within the Coastal Zone within the Flood Plain) . SECTION 2 . The following described real property consisting of approximately 28 acres, generally located on the east side of Beach Boulevard beginning approximately 200 feet north of the northeast corner of the intersection of Pacific Coast Highway and Beach Boulevard and extending north approximately 500 feet, in the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book 51, Page 14 of Miscellaneous Maps in the office of the Recorder of said county, and designated "B" on Exhibit "1" (overlay to District Map 14 of the Huntington Beach Ordinance Code) , is hereby changed from RA-O-FP2 (Residential Agricultural within an Oil District within a Flood Plain) to RA-O-CC-CZ-FP2 (Residential Agricultural within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 3 . The following described real property consisting of approximately 13 acres, generally located to the north and to the west of the Orange County Flood Control channel D1-2, that portion of the southwest 1/4 of Section 13, Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, as shown on a map recorded in book 51, page 14 of Miscellaneous Maps, in the Office of the County Recorder -2- of said County, designated as "C" on Exhibit "1" (overlay to District Map 14 of the Huntington Beach Ordinance Code) , is hereby changed from Ml-A-O-FP2 (Restricted Manufacturing within an Oil District within the Flood Plain) to Ml-A-O-CC-CZ-FP2 (Restricted Manufacturing within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 4 . The following described real property consisting of approximately 17 acres, generally located on the inland side of Pacific Coast Highway to the east of the Edison Company Power Plant and extending east along Pacific Coast Highway approximately 1, 000 feet and north to the Orange County Flood Control Channel D1-1, in the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book 51, Page 14 of Miscellaneous Maps in the office of the Recorder of said county, designated "D" on Exhibit "1" (overlay to District Maps 14 and 29 of the Huntington Beach Ordinance Code) , is hereby changed from M2-O-FP2 (Industrial District within an Oil District within a Flood Plain) and RA-FP2 (Residential Agricultural within a Flood Plain) to M2-0-CC-CZ-FP2 (Industrial District within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) and RA-CC-CZ-FP2 (Residential Agricultural with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 5 . The following described real property consisting of approximately 10 acres, generally located on the inland side of Pacific Coast Highway at the northwest corner of Pacific Coast Highway and Magnolia Street and extending approximately 700 feet -3- west along Pacific Coast Highway and north to the Orange County Flood Control District Channel D1-1, that portion of the northeast 1/4 of Section 24, Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, designated as "E" , on Exhibit "l" (overlay to District Maps 14 and 29 of the Huntington Beach Ordinance Code) , is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to LUD-CC-CZ-FP2 (Limited Use District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 6 . The following described real property consisting of approximately 56 acres, generally located on the inland side of Pacific Coast Highway between Magnolia Street and Brookhurst Street and north to the Orange County Flood Control District Channels D1-1 and D2-2, that portion of the west 1/2 of Section 19, Township 6 south, Range 10 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California designated as "F" on Exhibit "l" (overlay to District Maps 22 and 29 of the Huntington Beach Ordinance Code) , is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) to LUD-CC-CZ-FP2 (Limited Use District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 7. The following described real property consisting of approximately 16 acres, generally located on the inland side of Pacific Coast Highway between Brookhurst Street and the Santa Ana River extending north to the Orange County Flood Control District Channel D2-1, that portion of Section 19, Township 6 South, Range 10 West, in the Rancho Las Bolsas, in the City of Huntington Beach, County of Orange, as shown on map recorded in Book 51, page 14 of -4- Miscellaneous Maps, in the office of the County Recorder of said County, acquired by the State of California by Parcel 3 of Final Order of Condemnation (State Parcel A1788) , filed in Superior Court Case No. 123366, a certified copy of said final order being recorded April 29 , 1965 in Book 7502, page 533 of Official Records, in said office, designated as "G" on Exhibit "l" (overlay to District Map 22 of the Huntington Beach Ordinance Code) , is hereby changed from LUD-FP2 (Limited Use District within a Flood Plain) and LUD-FP1 (Limited Use District within a Flood Plain) to LUD-CC-CZ-FP2 (Limited Use District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) and LUD-CC-CZ-FP1 (Limited Use District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 8 . The following described real property and commonly known as the Edison Company, generally located on the inland side of Pacific Coast Highway at the northeast corner of the intersection of Newland Street and Pacific Coast Highway and extending north to the Orange County Flood Control District Dl-1 channel, in the City of Huntington Beach, County of Orange, State of California, being that portion of fractional Section 13 and that portion of fractional Section 24 all in Township 6 South, Range 11 West, S.B.B. & M. in the Rancho Las Bolsas, per map recorded in Book 51, Page 14 of Miscellaneous Maps in the Office . of the Recorder of said County, designated as "H" on Exhibit "1" (overlay to District Maps 14 and 29 of the Huntington Beach Ordinance Code) , is hereby changed from M2-0-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-O-CC-CZ-FP2 (Industrial District within an Oil District with a Coastal Conservation overlay within the -5- Coastal Zone within a Flood Plain) . SECTION 9 . The following described real property consisting of approximately 28 acres, generally located northwest of the intersection of Magnolia Street and the Orange County Flood Control District D1-1 and commonly known as the Edison Oil Tank Farm, that portion of the southeast 1/4 of Section 13 , Township 6 south, Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, as shown on a map recorded in Book 51, Page 14 of Miscellaneous Maps, in the Office of the County Recorder of said County, designated as "I" on Exhibit "l" (overlay to District Maps 14 and 29 of the Huntington Beach Ordinance Code) , is hereby changed from M2-0-FP2 (Industrial District within an Oil District within a Flood Plain) to M2-0-CC-CZ-FP2 (Industrial District within an Oil District with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) and from M1-A-FP2 (Restricted Manufacturing within a Flood Plain) to M1-A-CC-CZ-FP2 (Restricted Manufacturing with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 10 . The following described real property consisting of approximately 2 acres, generally located at the northeast intersection of Magnolia Street and the Orange County Flood Control District D1-1 Channel, that portion of northeast 1/4 of Section 24 , Township 6 south Range 11 west, in the Rancho Las Bolsas, City of Huntington Beach, County of Orange, State of California, designated as "J" on Exhibit "1" (overlay to District Map 29 of the Huntington Beach Ordinance Code) , is hereby changed from (Q)ROS-FP2 (Recreational Open Space with Qualified Classifications within a Flood Plain) to ROS-Q-CC-CZ-FP2 (Recreational Open Space with -6- Qualified Classifications with a Coastal Conservation overlay within the Coastal Zone within a Flood Plain) . SECTION 11. The Community Development Director is hereby directed to amend Section 9061, District Maps 14, 22, and 29 (Section District Maps 13-6-11, 19-6-10, 24-6-11) to reflect Zone Change No . 88-18 described in Sections 1 through 10 hereof . Copies of said district maps, as amended hereby, are available for inspection in the office of the City Clerk. SECTION 12 . This ordinance shall take effect thirty days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 1990 . Mayor ATTEST: APPROVED AS TO FORM: City Clerk C' t .'Attorney W/d-X-'y'J REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator D#elopme for o u y -7- -ANNING ZONING DM 14 SECTIONAL DISTRICT MAP 13-6-- II - N07E w •.aro—a.•r.. CITY OF •D DY,ED MARCH T. 19 t0 �•,{.. .•ro....6."'`p 1M'an-,: t.•(..•t..rw . (a clr+ COUREIL OMDIM6MCL NO. 75/ I.EWND-r w I,t m Q to.,mr -,Q y(ItnrW 4a,MCt ♦YEMOE amo-a4Q. •Y MO UNORO,MO- cmMc ,m-,,Ky --Yff11,Ct HUNTINGTON BEACH 03.s-606.61 R9 7,1 1 •,T-67 w6T13IT © Kstx rW •cwastwn°s w(s !•6�61 ,J- ezl 6 -'9-{766661JJ0 � ,rgya r,er e,at„Kt l-7.6I 23r 900 •66 6e-t7 t12i Q� s,s.r •+o•+sfuu dit•Kr {•.a.{2 255 9oe 9 )-66"1* 110 l'J Ks,wKt(• .,.wVK„,•,w1 4f,.K• 6-l-63 3.o c) ,�;i ., rr.t •.O. ,92 - 66-431161 0 39-0TOO7 .16-71 71.13 166/ II ANGE CO U NTY, CALIFORNIA I-20-61 390 ,OL 3.20.17, ote-tJ ItJt 6 ..K�.°�{.n,tM(.o.v•..?.-(„aw KfsK,n w,f•urt.w &.n1-it K1 2-17.94 •01 1037 5 2 r(.I 71. ( 3-2.6.1 +02 t01!1 12-Iv-6(r2e7 17)Y x2zllex ! 1.6 .6 ! R e to z3233%t Ccuew.s.pwtwr(n.on 1r, 6. 61• 3 , ..7.6o 60.z 2425 9-19.64 .64 IJ07692 1-6-62Go,25! CM ,ute ri.w.•.af,.•uf,.,••o,,K/a•u•r e-1-66 13,234 J 7-62 6z-! 2!1 7 m -,—.a— .fs+K•o•aaaG,c•,.tu.°,,u•oOu„ea.a• 1 e• 84-7 2706 - -- (Irs,r la.t•ewwn � F/AT L A N TA j��//��/����///�/////��//�///�/��/�/////� C/�//���/�/�//���/////�/j///�AY��/��®,i:oao n•+.w,.K,.� JI/L/.C/. V�� R3 ---!_ — RI �`. 6 RII RI RI •wR.v3•cw•� R3I R3 R3 RI ""Q R3 (, i R3 ��R3 RIRI ` RIC4 S RI RI R3 3 _s kRx Zf R 2 R3` R3 w y11, 1 RI RI -- t11,1W1 1 I 04 '-�_R2-'�- R I C4 R3 rr:"R3� 9�� J 'I RI CF-E 4R, 1RIR? RI R3 R3 : RI R2_ RIova'. >s_ R3 R3 wsa R3 -- R4-28° R3 R3 IV� RI a>R' ..... w(..,t. ` o r R3_ °rwvtE R3 ':- .-ix J _ x,-_- RI-... - I RI RI RI RI Cr-R R J ----- -, -s g - '. _--- — -'-'-- RI o -A-O I I I M I CR D - > € ;RI RA._,= aRl`� t CJ I Ou j MI-A -O C Mi n-O=Cz o k% D c D i LUD-0-CZ ` .,�,.. I 'y I 2-0 c c 4 s� ,,,• c I a J ? Ar MH-CZ s/,c , M2- r 1,01 M 2-0 PACIFIC OCEPN .le. 0 EXHIBIT 1 , PAGE ONE OF THREE _At4NING ZONING DM 29 SECTIONAL DISTRICT MAP 24-6-II . NOTE* .11 P•t.f�0.f ••[ .•rl[r CITY OF AOOPTEO YARCN 7 1960 iwl«•o[o rat io°iK itt nii cl7r COUNCIL OROINANCE NO 7s. LEGEND Z4S ®[.WST.i.l[sct DI'i•ltr if*.<r �O QU R N . AY ND OR _N ®Cos t0.t MNrn IIJNTINGTQN BEACH f.lb.:2 253 62. �.[.T.Ki[. ....t.�.,� ..... [r.cr I.lb. 2)) 900 026 ®a.K[rR0It1fNR..I D.fi•Kr .-il 67 66 G 1517 co.6�•t0 I.o. pqK rKy J A 4.1l 77 n.)�[I' 2T., Acl. lll.rCU•1f WOl[AIC. 1p.rntl - - 24,r 64 6)-1) 26e1 ®t—go us(af,..n 72*6. N-7 2106 m)•r•xuw-.W.wr,...... R A N G E C: U U N T Y. CA 1, 1 F 0 R N I A D00 20NE 2604 CS, _CO....l to.K.p/.p.•. T Y ri:7\ S �)fe1 ✓' ` / � 2'i y7 � �4 a 1-A I-CZ-FP2 �C ♦ pa M2-0- P2PQ� 5 s� C, b LUD-FP2 ` I ` I LUD-FP2 q 9 C�� 1 SA i C>'c tiwr A2 0� EXHIBIT 1 , PAGE TWO OF THREE LANNING ZbNING DM 22 S 1. (• 1 1 0 N n I DISTRICT M A P 19-6-10 i�r--r----r-�-�+ NOTE �1 ADOritO NARCN 7.1960 u1•wK+w(s .(�'.D•�o�..(Y...... CITY O1 L.,• coONcR ORDINANCE No LEGEND' ® u,nt . .nrot,a oNr.cr .N(NpY C.f[( b,D ND ..4.Ot4 VY O,0 O 0rfK9..D((„M L ?,r.K. t-Ww ��. rt. �.�I.t> r,0(A lUt 1t0. O .[1rAKrlD ,.YRACTY.M ow.ar HI�NTINGTON BEACH ':°'` "�« ® - tD.rl.Nl Wi.Ki ..).., ®RL]ptNR.l A(AOA,YAAL MT— f•.-H ua Off ® iv0(ANiL..O�p(KE WfMKr ;.�':: In ® U:TLO•VLT lat,.Na..(LD(.((Vfr.K, O•h•i0 A•O i)W it.f Q •LotO.l All p,iAKi ORANCL COUNTY CALIFORNIAo: ® `(0;;4�:�w, -. . ED / Y ERI � >Q �°[♦I R l 3 ) - \�W a ' RI-01 RI-01 7 3 RI trcc U L? wxoxAI �r j ✓e c RI y°1 U _ ft1 LAXXT.1R I.1 CR I IRI� (uRlu R J RI RI �RIy� RI 3 l Y RI U _ Rl - (t RI 1 `^r��•• Q� A) \� ti l Rl o S� 4 ,p2 0 +�\� cl A ,>/ Av //" ,y O 4. s f0 •• O O �f RO (; yr EXHIBIT 1 ] PAGE THREE OF THREE RESOLUTION NO. .� A RESOLUTION OF THE CITY COUNCIL.XZTHE CITY OF HUNTINGTON BEACH APPROVING ZONE CHANGE NO. 88-18 FOR THE "WHITEHOLE" AREA WHEREAS, the City Council of the City of Huntington Beach desires to achieve consistency between the land use plan and the zoning for the subject area, and The City Council of the City of Huntington Beach desires to bring the City into conformance/with State Planning Law, and The City Council of the City of Huntington Beach desires to complete certification of the subject area and thereby complete certification of the Local/Coastal Program, and A public hearing ©n adoption of Zone Change No . 88-18 was held by the Planning Commission on December 5, 1989 , and approved for recommendation to the City Council, and Thereafter the City Council, after giving notice as prescribed by law, held at least one public hearing to consider Zone Change No. 88-18, and At said hearing before the City Council all persons desiring to be heard onsaid amendment were heard, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Huntington Beach, Zone Change No . 88-18 consisting of the followingchin es is hereby adopted: 9 Y p Various districts within the 232 acre noncertified "whfitehole" area are designated as follows : JThe 7 . 0 acre parcel depicted as Area One on Exhibit A is designated as VSC-CZ-FP2 (Visitor Serving Commercial within the Coastal Zone within a Flood Plain , and O -1- 2 . The Zoning of the parcels depicted as Areas 2, 3, 4 , 5, 6, 7, 8, 9 and 10 on Exhibit A is changed by affixing a Coastal Conservation overlay to the existing zoning. Zone Change No . 88-18 will be presented to the California Coastal Commission to supplement the previously approved land use plan and to complete certification for the "whitehole" area . PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of , 1990 . This Resolution will take effect on the effective date of Ordinance No. 3033. Mayor ATTEST: APPROVED AS TO FORM: City Clerk Cit7 Attorney , \. ��•�� REVIEW AND APPROVED: INITIATED AND APPROVED: City Administrator Yevelopm ector i ent -2- IS+ 10 '%,'' ��. i , 4G• I Dl-1 __r.Cp i72 Fa1•SI L`7T PI.V."i �h . 1� Off'• - - cD �,tip �', , 1` �,. �) � ��'1 �,� i f1 4 ) �. rt :�.�. ;• \ '• r� WJ buV eat Area �rr�p�ct zcw,;h� VISITOR SERVING COMMERCIAL -----f!AMILTON EXTENSION EXHIBIT A CONSERVAI101) Adlb► NONCERTIFIED INDUSRTIAL ENERGY PRODUCTION COASTAL AREAS . }IUNTWGTON BEACH CAIFORNIA ZO N C/ ' e A`s►qi/p4Ofi`I 6E � y S PLANNING DEPARTMENT •. �� 1ND, ENERGY PIZCu,/ CONSERVATION j�•.r. Y■ 0 O c� c� I Y $ � 1 i I 1 l I n �1 L I II L� I huntington beach planning department CITY OF HUNTINGTON BEACH CITY COUNCIL ALVIN M.COEN,Mayor NORMA BRANDEL GIBBS, Vice-Mayor TED W.BARTLETT, HENRY H.DUKE, JERRY A.MATNEY, DONALD 0.SHIPLEY, HARRIETT WIEDER DAVID D.ROWLANDS, City Administrator PLANNING COMMISSION EDWARD H. KERINS.Chairman FRANK P. HIGGINS,Vice-Chairman ROBERT D.BAZIL, JOSEPH P.BOYLE, WILLIAM J.GEIGER, MARCUS M.PORTER, KATHERINE L.WALLIN, RICHARD A.HARLOW, Secretary i � May.1974 huntington beach•california planning department • ABSTRACT This document is the City' s first attempt to combine its open space and conservation goals with the detailed environmental data obtained from a comprehensive analysis of its natural resources. The objec- tive is to develop preliminary "concept plans" which will spur discussion and serve as forerunners of the eventual Open Space and Conservation Element. Toward this end, the report outlines open space and conservation plans which approach the future of the City' s environment from three different perspectives. Alternative A presents a minimal plan which relies solely on existing and currently planned facilities and programs. No new areas are identified for open space nor would this plan require adoption of additional environmental ordinances. This alternative • assumes that the City has a minimal responsibility for the fate of the environment and allocates the disposition of natural resources to the free market. The basic philosophical concept behind this plan is that enough has already been done and no additional conservation efforts should be undertaken by the City. Alternative C, on the other hand, outlines an "ultimate plan" which maximizes preservation and conservation of natural resources. It encompasses all priority areas identified by previous back- ground reports and would be reinforced by a broad range of new open space and environmental regulations. The plan assumes that the City is responsible for its natural resources and must take an active role in conserving and preserving them; that natural and cultural resources have intrinsic value and should be protected for future generations; and that open space is a useful tool for guiding growth and shaping urban development. This plan reflects a philosophy which would protect all possible resources and do so by public purchase of those resources. Between these two plans is Alternative B which presents a "moderate plan" including preservation of many of the most vital resource areas and strict policies, regulations, and ordinances designed to incorporate conservation measures into daily development activities designed to mitigate the impacts of such development on the environment. This plan assumes that the City is responsible for its natural resources and should play an active role in conserving them when possible. It also assumes, though, that responsibility for preservation rests with both private and public capabilities. The philosophy behind this plan is that the City should do as much as realistically possible to conserve environmental quality through a coordinated program of regulation and acquisition. These plans are conceptual in nature and must not be regarded as specific proposals. Rather, they should be analyzed for the philosophical foundations upon which they are built. • 1 It is the recommendation of the Planning Staff that the City' s final Open Space and Conservation Plan combine the assets of both Alternatives B and C; specifically, maximum protection of resources through a coordinated public ownership and strictly enforced open space and conservation ordinances. Such a plan would accomplish the City' s environmental objectives by utilizing all its authorized powers instead of placing the total burden for environmental protection on the municipal treasury and the tax payer. • TABLE OF CONTENTS PAGE 1. 0 INTRODUCTION 1 1.1 Purpose 1 1. 2 Background 2 • 2. 0 ALTERNATIVE PLANS 4 2. 1 Relationship to Other General Plan Elements 4 2. 2 Alternative A: Minimum Plan 4 • 2. 3 Alternative B: Moderate Plan 7 2.4 Alternative C: Ultimate Plan 10 • 3. 0 CONCLUSION 14 3.1 Recommendation 14 3. 2 Continuing Program 16 • 4. 0 APPENDIX 17 • • • • section 1 introduction • • • 1. 0 Introduction • The development of a comprehensive open space and conservation program for the City of Huntington Beach is a task requiring considerable effort and cooperation. More than two years were spent by citizen representatives developing the goals and policies that will direct the plan, and many months have been devoted to • gathering and analyzing information about the City' s natural resources. This document is a first attempt to combine both goals and information into a preliminary plan. 1. 1 Purpose • Actually, this report presents three of•many possible alternative concepts for dealing with the environment of Huntington Beach. These alternatives are presented for review and to generate discussion about the future of the City's environment. The alternative plans presented on the following pages are general in nature. Their purpose is to illustrate possible courses of action open to the City in dealing with its natural resources. Three basic plans -- minimal, moderate, ultimate -- are outlined and analyzed in an effort to secure a concensus about the best way to proceed in formulating a Final Open-Space and Conservation Plan. 1 • It is not the intention of this report to secure approval of one of the general concepts presented. It is more _likely that a desirable program will be a composite of features from each alternative. Therefore, the comments and reactions stimulated by this report will provide direction for the Planning staff in formulating The Final Open Space-Conservation Element. 1. 2 Background In December, 1973, the City adopted a Phase I Open Space and Conservation Element which broadly outlined a preliminary environ- mental preservation program. This Phase I Element was designed to meet the state-mandated criteria for Open Space and Conservation Elements but was only a first phase of the City' s environmental management program. That long-range program was described in the Phase I Element and is illustrated in Figure 1-1. Since adoption of Phase I, background reports dealing with resources for open space and resources for conservation have been presented for public review and discussion. And following official action on the three alternative plans developed within this document, work on the Final program will begin. As described in the Phase I Element, the Open Space and Conservation Element will not be regarded as an end product. Rather, it will form the nucleus of an Environmental Resources Management Program in which open space and conservation considerations are combined with the scenic highways, recreation, safety, seismic safety, and noise elements of the General Plan into a management system that will provide a guiding influence for all future growth and develop- ment. Such a program would eventually result in the preparation of specific development plans for resource areas. As a comprehen- sive environmental factors analysis, the ERMP would provide a consistent rationale for evaluating environmental impact, for developing logical growth and resource management strategies, and for making logical land use decisions. 2 FIGURE 1-1 OPEN SPACE AND CONSERVATION ELEMENT METHODOLOGY Preliminary 4 Final Open Analysis of Space Resources 2A Open Space Analysis Resources a� Phase I : cz w 1 Resource 3 Open Space and Inventor Conservation 6 a� Final Open a Element Space and Q Conservationw Element if Cd Preliminary Final a, 2B Analysis of Conservation Conservation g Resources Resources Analysis section 2 plan alternatives • • • • • 2.0 Alternative Plans The following pages outline alternative open space and conservation plans which approach the future of the City' s environment from three different perspectives. Alternative A presents a "minimal plan" relying solely on existing and proposed facilities and programs. Alternative C outlines an "ultimate plan" which maximizes preservation and conservation of natural resources. Between these extremes is Alternate B which presents a "moderate plan" . • 2. 1 Relationship to Other General Plan Elements It should be kept in mind that decisions about open space and resource conservation cannot be made in isolation. Each alterna- 40 presented below not only holds implications for the City' s environment but affects other elements of the General Plan, too. For example, the open space concept selected will have repercussions on the land use and circulation elements just as it will have bearing on population growth and preparation of the Seismic-Public Safety Plan. Therefore, each alternative must be judged in light of the City' s overall development objectives as well as its environmental goals and policies. 2. 2 Alternative A: Minimum Plan Depicted in Figure 2-1, this alternative involves only existing and currently planned programs. No new areas are identified for open space nor would this plan require adoption of additional environmental ordinances. 4 2. 2. 1 Explanation Specifically, this plan would maintain all existing open space areas in the City (such as local parks and beaches) . Additionally, all currently proposed projects would be continued; i.e. , Bolsa Chica Wildlife Reserve, local parks program, Central Park expansion., recreational trails. Thirdly, under this alternative existing open space and conservation programs would. also be continued; e.g. , Capital Improvements Program, Coastline Study, Archaeological Study, and the Santa Ana Greenbelt Plan. Finally, existing open space and conservation ordinances would continue to be utilized. This plan designates six open space and conservation categories: recreation area, resource preserve, neighbor- hood park, water area, resource production, and trail. Recreation Area: applies to all public and private park and recreation areas that are community wide or regional in nature. (Neighborhood parks are excluded from this category. ) This classification is intended for large open areas and active recreation facilities. Resource Preserve: applies to land set aside primarily for the protection of natural resources. Neighborhood Park: applies to small, local open space areas designed for neighborhood use. Water Area: applies to salt and fresh water areas considered for both conservation and recreation purposes. Resource Production: applies to land primarily devoted to managed production of resources. Trails: applies to bicycle trails. Undesignated areas are assumed to be urban. The acreage contained in each category is itemized below: Recreation Areas : Community Parks 106 ac. Huntington Central Park 435 ac. Beaches Huntington State 110 ac. Bolsa Chica State 86 ac. Huntington City 50 ac. Huntington Pacific Corp. 69 ac. Sunset State 36 ac. Trails City 28 mi. County 14 mi. 5 i • I i a OPEN SPACE & CONSERVATION ELEMENT e� r� ' ALTERNATIVE A : MINIMUM a ('^ � � 1, - •.<...«^' °`^f �Pa��' ���O 9�a � •` �'�`� tfC ►pCQ �1,p I OP ,rV E �� /, .. .. ♦\ /�. \ S -07 •� � `�.. � �%\;" ` � �t i �. `J`. '�. •\ �'► PAS 10 el lk i y � / / ., �,,c �.<..i ,. ti, . •!4 s• e .��\y� ''. '� "fir ��x • r. ww,,��FII•• / s \ f y : ,•�••t .. .y. .. Fig.2—1 w WATER AREA ❑ RECREATION AREA a HUNTINGTON BEACH CALIFORNIA II PLANNING DEPARTMENT ® RESOURCE PRESERVE ❑ RESOURCE PRODUCTION TRAILS I NEIGHBORHOOD PARKS I i Golf Courses Meadowlark 96 ac. Seacliff 140 ac. Resource Preserve : 530 ac. Neighborhood Parks : 189 ac. Water Areas : . Huntington Harbour Waterways 258 ac. Santa Ana River 75 ac. Flood Control Channels City 22 ac. County 428 ac. Resource Production: Oil 740 ac. TOTAL 3, 370 ac. 42 mi. 2 . 2. 2 Cost-Benefit Information An important factor involved in selecting any open space- conservation program will necessarily be cost. Though the alternative plans presented in this report are not specific, a general cost-benefit analysis is developed for each one based on economic formulas developed by Orange Countyl and the Southern California Association of Governments (SCAG) . While the figures used in this document are not precise, they will be useful as a tool for comparing different plan alternatives. Appendices 1 through 4 detail a cost analysis for Alterna- tive A. As they show, the total cost to the City for acquiring and developing all projects listed would be $19 .6 million and maintenance would amount to about $98 million from 1974 to 1990 . On the other side of the ledger are the revenues and user benefits derived from the Alternative A program. Appendix 6 discloses that fees and taxes generated by all open space uses total about $44. 7 million; and using formulas developed by Orange County and SCAG, Appendices 6 through 9 analyze the $672 .9 million of user benefits that might 1 Management Guidelines for Open Space, prepared for Orange County by Williams-Kuebelbeck and Associates, Inc. , June , 1973. 6 be derived from this plan. Of course, these user benefits do not accrue directly to the City; but they are accumulated by the community as a whole and are , therefore, important to the City decision makers. (These figures do not take account of the fact that Alternative A would cause considerable over-use and crowding of planned facilities which could detract significantly from the value of user benefits . ) Appendix 10 presents the "balance sheet" for Alternative A -- comparing $117. 6 million in costs to $717. 6 million in benefits resulting in a net gain to the community of $600 million and a net cost to the City of $72 .9 million. (This figure does not account for the possible loss of natural resources not preserved under this alternative, however. ) 1 2. 2. 3 Analysis Each alternative plan discussed in this report has implications other than economic ones , of course. And many of the implications stemming from Alternative A result from the assumption upon which this plan is built. This alternative assumes , for example, that the City has a minimal responsibility for the fate of the environment and allocates to the free market the disposition of its natural resources. It follows that under this alternative concept open space and conservation programs will not be consciously used as tools to guide growth and shape urban development. Overall, this plan does not adhere to the City' s environ- mental goals and policies. Though total acreage in open space uses would increase, the ratio of acres per person would decrease over time (as indicated in Appendix 11) . And though this program might preserve more environmental assets than would survive without any plan at all, many important resources and resource areas may be permanently destroyed. This plan would not arrest the continued decline and general disappearance of natural habitats and the species which inhabit them though it would protect the most vital part of the Bolsa Chica. This plan would not greatly affect the aesthetics of the community nor would it remove an excessive amount of land from the private sector. 1 2 . 3 Alternative B: Moderate Plan Figure 2-2 outlines a "moderate" open space and conservation plan that relies on both public and private activities to support a program considerably more extensive than Alternative A. 7 I l OPEN SPACE & CONSERVATION ELEMENT ALTERNATIVE "B": MODERATE ! I rob xI ? V ' ��♦ ., \.. \ :\ ,.� lea � `i i, �.�Cy i � � ` `'\ � � �_/ ,� �b `mob �*C ,'�'�•� \ \ w' '��5 'ham '' t ,���. �S'k t � \ `•� , FIG. 2-2 OPEN SPACE 7. xa ■ WATER AREA e DEVELOPMENT •~ HUNTINGTON BEACH CALIFORNIA � F PLANNING DEPARTMENT El RECREATION AREA El SCENIC CORRIDOR ® RESOURCE PRESERVE Q RESOURCE PRODUCTION BICYCLE TRAILS NEIGHBORI CLOD PARKS EOUESTRIAN TRAILS w 2. 3. 1 Explanation Encompassing all existing and planned open space and conservation programs as well as several additional projects , this plan goes farther than Alternative A to protect most priority areas identified in previously published environmental background reports. To accomplish its objectives it depends upon the actions of other governmental jurisdictions and private developers in addition to actual City expenditures . This plan, which does not preserve all identified resource areas , would be supported by strict policies, regulations , and ordinances designed to incorporate conservation measures into day-to-day development activities and thus mitigate the impacts of such development on the environment. This plan designates eight open space and conservation categories: scenic corridor, recreation area, resource preserve, neighborhood park, water area, resource production, trails , and open space development. ' Scenic Corridor: linear area protected from disharmonious development or preserved in a natural state; includes scenic highways and open space greenbelts. Recreation Area: applies to all public and private park and recreation areas that are communitywide or regional in nature. (Neighborhood parks are excluded from this category. ) This classification is intended for large open areas and active recreation facilities. Resource Preserve : applies to land set aside primarily for the protection of natural resources . S Neighborhood Park: applies to small, local open space areas designed for neighborhood use. Water Area: applies to salt and fresh water areas considered for both conservation and recreation purposes. a Resource Production: applies to land primarily devoted to managed production of resources. Trails : applies to bicycle and equestrian trails . Open Space Development : applies to special resource areas where development would be restricted to very low density with a primary emphasis on preserving and incorporating natural resources into the development plan. Undesignated areas are assumed to be urban. 8 w 1 The acreage contained in each category is itemized below: Scenic Corridors Greenbelts 8 mi. Highways 12 mi . ' Recreation Areas Community Parks 106 ac. Central Park 435 ac. Beaches State 265 ac. County 36 ac. City 50 ac. Equestrian Center 40 ac. Trails-Bicycle City 28 mi . County 14 mi. Trails-Equestrian City 4 mi. County 3 mi. Golf Courses Meadowlark 96 ac. Seacliff 140 ac. Resource Preserve State 530 ac. City 25 ac. Neighborhood Parks 313 ac. Water Areas Huntington Harbour 258 ac. Santa Ana River 75 ac. Flood Control Channels City 22 ac. County 428 ac. Resource Production Oil 370 ac. Open Space Development 547 ac. TOTAL 3 ,736 ac. 69 mi. 2. 3. 2 Cost-Benefit Information A general cost analysis for Alternative B is presented in AnpPndices 12 through 15. Based on a four-phase implementation program extending over the sixteen years between 1974 and 1990 , these figures include adjustments for a five percent inflation rate. The total cost for acquisition, development, and maintenance is about $150 .6 million. Municipal revenues generated by this proposed program over the same period would total $38. 3 million (Appendix 16) • User benefits from local and regional facilities are estimated at $672 . 5 million (' Appendices 17 and 18) and benefits from miscellaneous facilities -- bicycling, horse riding, and scenic highways -- total 9 $502 ,775 (Appendices 19 and 20) . When these statistics are compared in Appendix 21, net community benefit (Total Benefits minus Total Cost) from Alternative B equals $560 . 7 million and net municipal cost (Total Cost minus _* Total Revenues) equals $112 . 2 million over a sixteen year period. 2 . 3. 3 Analysis Several pertinent assumptions underlay the development of this alternative proposal. First, it presumes that the City is responsible for its natural resources and that it should play an active part in conserving and preserving them when possible. In a similar vein, it is an- assumption of Alternative B that natural resources have intrinsic value and should be preserved for future generations. The responsibility for preservation rests with both private and public capabilities . Based on these assumptions , Alternative B accomplishes many of the goals set forth in the Phase I Open Space and Conservation Element. The plan provides for a variety of open space and conservation needs including active and passive recreation, scenic enjoyment, cultural enlightenment, resource production, and nature reserve. By relying on strict ordinances and regulations , however, it provides for these needs without commitment of R, municipal finances; and by requiring special development standards in vital open space areas (e.g. , Bolsa Chica) , resources can be preserved through private developers without loss of property tax revenues. Appendix 22 reveals that Alternative B would provide a higher open space ratio than Alternative A and would result in 12 . 23 acres/1,000 persons by 1990 . About 3. 6 acres/1,000 persons would be provided by city-owned facilities. 2 .4 Alternative C: Ultimate Plan This proposal, illustrated in Figure 2-3 , represents .total incor- poration of the City' s varied natural and cultural assets into a comprehensive conservation program. It encompasses all priority areas identified by previous background reports and would be reinforced by a broad range of new open space and environmental regulations. 2 . 4. 1 Explanation Of primary concern, this plan preserves and conserves all priority resources identified by the City' s research 10 and analysis efforts. Open space areas were identified by locating vacant or undeveloped acreage which contained valuable resources -- valuable in regard to State- established categories of open space for natural resources , open space for managed production of resources , open space for outdoor recreation, and open space for public safety. Priority resources for conservation were established by a criteria judging their potential health and safety role, ecological role , economic role, recrea- tion role, amenity role , and uniqueness as well as the degree of influence the City can exert over their future utilization. A major objective of this plan is to incorporate environ- mental concerns into the decision-making process through expanded environmental ordinances and requirements . This would include strong conservation measures in subdivision and development codes , an extensive internal E.I .R. process, strict adherence by all departments to adopted goals and policies , and extensive public information programs. This plan designates seven open space and conservation categories : Scenic Corridor - linear areas protected from disharmon- ious development or preserved in a natural state; includes scenic highways and open space greenbelts. �1 Recreation Area - applies to all park and recreation areas that are communitywide or regional in nature. Resource Preserve - applies to land set aside primarily for the protection of natural resources . Neighborhood Park - applies to small, local open space areas designed for neighborhood use . Water Area - applies to salt and fresh water areas considered for both conservation and recreation purposes. Resource Production - applies to land primarily devoted to managed production of resources. Trails - applies to both bicycle and equestrian trails. Undesignated areas are assumed to be urban. The acreage contained in each category is itemized below: Scenic Corridors Greenbelts 8 mi. Highways 12 mi. 11 � I i r OPEN SPACE & CONSERVATION ELEMENT ALTERNATIVE "C" ULTIMATE 4 I � a I A. , �$�` � /; �,- ;, ,•.• ... «, ....., ?�a Imo . ;, .a` �Pa Pad` �,.. �, �F �.+�►� '� a a,o ell 17 10+ • n s - , , •fir. '�►/ .,. —•{-•.^"^.". .a.�. , 'y. � Fig. 2-3 ■ a All, ; � � WATER AREA RECREATION AREA { a HUNTINGTON BEACH CALIFORNIA , PLANNING DEPARTMENT SCENIC CORRIDOR ® RESOURCE PRESERVE � 3y. 0 RESOURCE PRODUCTION * NEIGHBORHOOD PARKS BICYCLE TRAILS log■ EQUESTRIAN TRAILS • Recreation Areas Community Parks 106 ac. Central Park 435 ac. Bolsa Chica Park 547 ac. • Beaches State 265 ac. County 36 ac. City 50 ac. Equestrian Center 40 ac. Trails Bicycle 42 mi. Equestrian 12 mi. Golf Courses Meadowlark 96 ac. Seacliff 140 ac. Resource Preserve • State 530 ac. City 627 ac. Neighborhood Parks 313 ac. Water Areas i Huntington Harbour 258 ac. Santa Ana River 75 ac. Flood Control Channels City 22 ac. County 428 ac. • Resource Production Oil 370*ac. Agriculture 420 ac. TOTAL 4 , 758 ac. 74 mi. • * by 1990 2. 4 .2 Cost-Benefit Information • Appendices 23 through 26 outline a cost analysis for Alternative C. It must be remembered -- as previously mentioned -- that these estimations are for comparison only. Though they do represent a consistent rationale and include factors for inflation and changing social behavior, they nevertheless are only crude tools for • predicting major costs and benefits for large-scale programs over time. To arrive at the estimations presented on the following pages, the "ultimate" plan was divided into four phases: to 1975, 1976 to 1980, 1981 to 1985, and 1986 to 1990. • Costs during each phase were escalated to reflect a five percent per year inflation rate so the total cost estimate • 12 i of $234 million reflects actual dollars not 1973 dollars. This amount includes acquisition, development, and maint- enance expenditures. As with the other proposals, offsetting these costs are i City revenues and user benefits from the plan. These revenue factors were also divided into phases and adjusted for inflation. Income to the City was escalated five percent per year and user benefits increased by 6 . 5 percent a year (as established by Williams-Kuebelbeck) . The resulting computations reveal over $42. 6 million in revenue (Appendix 27 ) and $673 million in user benefits (appendices 28 through 31 ) to be derived from Alternative C. This results in a net gain of $481 . 3 million to the community and a net cost to the City of $191. 6 million as indicated by Appendix 32. 2. 4 . 3 Analysis The comprehensive open space - conservation program set forth in Alternative C is based upon three major assump- tions: 1. The City is responsible for its natural resources and must take an active role in conserving and preserving them; 2. Natural and cultural resources have intrinsic value i and should be protected for future generations as well as the present; and 3. Open space is a useful tool for guiding growth and shaping urban development. Alternative C accomplishes the goals and objectives established in the Phase I Open Space and Conservation Element and provides for a variety of open space and conservation needs: active and passive recreation, scenic and cultural enjoyment, resource production, and preservation of natural areas. As illustrated in Appendix 33 , this plan increases total open space acreage as acres per person remain relatively constant. Relying as it does solely on fee title purchase to secure important open space and conservation areas, this plan -- while maximizing the City' s environmental assets -- would remove many hundreds of acres from tax liability 1 thereby reducing City income. On the other hand, by decreasing the supply of developable land, it would save the City considerable cost for servicing any urban uses on that property. 1 13 1 section 3 conclusion • • • 3. 0 Conclusion Figure 3-1 presents a statistical summary of each plan alternative presented on the previous pages. It reveals, as might be expected, that the more comprehensive the program is, the higher the cost will be. Surprisingly, however, it shows a decreasing "community benefit" corresponding to expanding programs. This is a result of the statistical method used which does not account for decreasing benefits from over-used facilities. Additionally, many costs and benefits have not been or cannot be evaluated in terms of dollars. Examples include costs from loss of resources not preserved; benefits of resources preserved; revenues lost from precluded development; expenditures saved by precluded development; aesthetic values; and benefits derived by residents outside the City. These factors suggest that decision-making should not be based solely on the cost figures presented. Rather, an open space - conservation plan a must be based on community needs balanced by economic costs. 3. 1 Recommendation It is apparent that Alternative A requires the least expenditure of municipal funds. Relying solely on existing and currently planned programs, it also provides the least protection to open space and natural resources. As a result, it does not correspond to the stated open space and conservation goals of the City. Alternative B requires higher municipal expenditures but provides more extensive protection to the City' s natural assets. This program relies heavily on other jurisdictions and on private 14 • t FIGURE 3-1 1 OPEN SPACE - CONSERVATION PLAN ALTERNATIVES COMPARATIVE ANALYSIS 1 ALTERNATIVE ALTERNATIVE ALTERNATIVE A B C COST: Acquisition Costs 12 ,106 ,240 21 ,074 ,765 62 , 319 , 114 Development Costs 7,544 ,753 17,051 ,414 37 , 283,094 Maintenance Costs 98 ,015 , 387 112 ,493 ,250 134 , 753 ,897 TOTAL 117,666 , 380 150 ,619 ,429 234 , 356 ,105 BENEFIT: 1 Municipal Revenues 44 ,715 ,284 38 , 348 ,761 42 ,661,422 User Benefits Local Facilities 318,025 ,200 318,025,200 318,025,200 Regional Facilities 354,512 , 430 354 ,512 ,430 354,512 ,430 Miscellaneous 399 ,400 502 ,755 502 ,755 1 672,937,030 673,040 ,405 673,040 , 385 TOTAL 717,652 , 314 711, 389 ,166 $715 ,701,807 Net Community Benefit 599 ,985 ,932 560 ,769 ,737 481, 345 ,702 1 Net Municipal Cost 72 ,951,098 112 ,270 ,668 191,694 ,683 TOTAL ACRES : 3, 370 ac. ; 42 mi. : .'3,736 ac. ; 69 mi . 4 ,758 ac. ; 74 mi. 1 Open Space/1,000 Persons Total-City Total-City Total-City 1975 14 .96-3. 79 14. 88-3. 70 15 .11-3.94 1980 13. 34-4 . 07 14 . 85-3 .59 12 . 75-6 .65 1990 10 .95-3. 34 14 . 03-4. 13 16 . 53-8.92 2000 9 .56-2 .91 12. 23-3. 60 14 .42-7. 77 1 15 / activities controlled by strict development ordinances. Its objective is to protect fragile resources by ordinance instead of acquisition. Therefore, while the total open space ratio provided by this plan is 12. 23 acres per 1, 000 persons (compared • to 9. 56 acres under Alternative A) , City-owned acreage is only 3. 6 acres per 1,000 persons. This is just slightly more than that provided by Alternative A. Alternative C represents the ultimate open space and conservation plan and also the greatest municipal investment. By preserving all identified priority resources, this alternative is in keeping with the City' s goals and policies and would increase total open space considerably over Alternatives A and B. City-owned open space would be increased to 7. 77 acres per 1,000 persons. The problem facing the City at this time is to provide the greatest possible protection to its natural resources at a reasonable and acceptable cost to the community. Though least expensive in terms of dollars, Alternative A would be prohibitively costly in terms of loss and damage to the environment. This fact should probably remove that alternative from serious consideration. Alternatives B and C could both be considered responsible approaches to environ- mental preservation. While not as extensive a program as Alternative C, Alternative B does protect most vital resource areas and promote establishment of meaningful municipal conservation legislation. Alternative C, the ultimate plan, is actually the "best" in relation to the City' s open space and conservation goals. Because it relies almost completely on municipal ownership, it guarantees preservation of vital assets. For the same reason, however, it is the most expensive of the three alternatives; and the cost might make the program unfeasible. Therefore, the Planning staff recommends that the City' s final Open Space and Conservation Plan combine the assets of both these alternatives; specifically, maximum protection of resources through a coordinated program of public ownership and strictly enforced open space and conservation ordinances. Such a plan could accomplish the City' s environmental objectives by utilizing all its authorized powers instead of placing the total burden for environmental protection on the municipal treasury and the tax payer. a 3.2 Continuing Program As mentioned previously, the development of these plan alternatives brings the City one step closer to completion of its state-mandated • Open Space-Conservation Element. After the Planning Commission has reviewed these alternatives and recommended a course for further action, the Planning Department will prepare a more detailed preliminary plan for additional review prior to formation and adoption of a final plan and implementation program. • 16 0 • • section 4 appendix APPENDIX 1 COST ANALYSIS: ALTERNATIVE A TO 1975 1973 DOLLARS Use Acres Acquisition* Development* Maintenance** • Recreation Areas Community Parks Existing 51 nc nc 173,400 Acquired 24 nc 348,000 81,600 Central Park Existing 167 nc nC 567,800 Acquired 83 nc 1,203,500 282,200 Beaches State 196 nc nC nc County 36 nc nc nc City 50 nc nc 830,350 Private 69 nc nc nc Trails • City Existing 5 mi. nc nc unk City Proposed 10 mi. 400,000 100,000 unk County 14 mi. nc nC nc Golf Courses Meadowlark 96 nc nc 8,256 • Seacliff 140 nc nc 12,040 Resource Preserve State Existing 300 nc nc nc Neighborhood Parks Existing 120 nc nc 408,000 Acquired 25 nc 375,000 85,000 Water Area Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control City 22 nc nc unk County 428 nc nc nc Resource Production Oil 1,480 nc nc 88,800** • TOTAL 3,620 ac. $400,000 $2,026,500 $2,537,446 29 mi. X 2 years Cost to 1975: $7,501,392 $5,074,892 * Based on information from Management Guidelines for Open Space, Williams-Kuebelbeck and Associates, June, 1973, pp. I-45, I-46. ** Based on information from Revenue-Expenditures Analysis of Land Use, Huntington Beach Planning Department, as amended April, 1974. APPENDIX 2 I COST ANALYSIS: ALTERNATIVE A PHASE II: 1976-1990 1980 DOLLARS (ESCALATOR 1.407) Use Acres Acquisition Development Maintenance Recreation Areas Community Parks Existing 75 nc nc 358,785 Proposed 31 1,308,510 632,446 148,298 Central Park Existing 250 nc nc 1,195,950 Proposed 185 7,808,850 3,774,277 885,003 Beaches State 265 nc nc nc County 36 nc nc nc City 50 nc nc 1,168,302 Trails City Existing 15 mi. nc nc unk City Proposed 13 731,640 182,910 unk County 14 nc nc nc Golf Courses Meadowlark 96 nc nc 11,616 Seacliff 140 nc nc 16,940 Resource Preserve State Existing 300 nc nc nc State Proposed 230 nc nc nc Neighborhood Parks Existing 145 nc nc 693,651 Proposed 44 1,857,240 928,620 210,487 Water Area Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control City 22 nc nc unk County 428 nc nc nc Resource Production i Oil 1,110 nc nc 93,706 TOTAL 3,740 ac. $11,706,240 $5,518,253 $ 4,782,738 42 mi. X 5 years $23,913,690 COST 1976-1980 $41,138,183 APPENDIX 3 COST ANALYSIS: ALTERNATIVE A PHASE III: 1981-1985 1985 DOLLARS (ESCALATOR 1.796) Use Acres Acquisition Development Maintenance Recreation Areas Community Parks 106 nc nc 647,278 Central Park 435 nc nc 2,656,284 • Beaches State 265 nc nc nc County 36 nc nc nc City 50 nc nc 1,491,308 Trails • City 28 mi. nc nc unk County 14 mi. nc nc nc Golf Courses Meadowlark 96 nc nc 14,827 Seacliff 140 nc nc 21,624 • Resource Preserve State 530 nc nc nc Neighborhood Parks 189 nc nc 1,154,109 Water Areas • Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control City 22 nc nc unk County 428 nc nc nc Resource Production Oil 740 nc nc 79,742 TOTAL 3,370 ac. 8 9 S 6,065,172 42 mi. X 5 years $30,325,860 Cost 1981-1985 $30,325,860 APPENDIX 4 ' COST ANALYSIS: ALTERNATIVE A 1986-1990 1990 DOLLARS (ESCALATOR 2.292) Use Acres Acquisition Development Maintenance , Recreation Areas Community Parks 106 nc nc 826,037 Central Park 435 nc nc 3,389,868 Beaches State 265 nc nc nc County 36 nc nc nc city 50 nc nc 1,903,162 Trails City 28 mi. nc nc unk County 14 mi. nc nc nc Golf Courses Meadowlark 96 nc nc 18,922 Seacliff 140 nc nc 27,596 Resource Preserve ' State 530 nc nc nc Neighborhood Parks 189 nc nc 1,472,839 Water Areas Huntington Harbour 258 nc nc nc / Santa Ana River 75 nc nc nc Flood Control City 22 nc nc unk County 428 nc nc nc Resource Production Oil 740 101,765 TOTAL 3,370 ac. 8 8 $ 7,740,189 42 mi. X 5 years $38,700,945 Cost 1986-1990 = $38,700,945 APPENDIX 5 • CITY REVENUES GENERATED: ALTERNATIVE A Revenue Per Source Acres Acre Per Year* Yearly Revenue To 1975 Parks 470 $ 347 $ 163,090 Beaches 50 5,393 269,650 Golf Courses 236 97 22,892 Oil 1,480 1,112 1,645,760 $ 2,101,392 X 2 $ 4,202,784 1976-1980 (Escalator 1.407) Parks 730 $ 488 $ 356,240 • Beaches 50 7,588 379,400 Golf Courses 236 136 32,096 Oil 1,110 1,564 1,736,040 $ 2,503,776 X 5 $12,518,880 1981-1985 (Escalator 1.796) Parks 730 $ 623 $ 458,528 Beaches 50 9,686 484,300 Golf Courses 236 174 41,064 • Oil 740 1,997 1,477,780 $ 2,461,672 X 5 $12,308,360 • 1986-1990 (Escalator 2.292) Parks 730 $ 795 $ 580,350 Beaches 50 12,361 618,050 Golf Courses 236 222 52,392 Oil 740 2,549 1,886,260 • $ 3,137,052 X 5 $15,685,260 Total Revenue 1974-1990 $44,715,284 * Revenue-Expenditure Analysis of Land Use APPENDIX 6 LOCAL FACILITIES USER BENEFITS : ALTERNATIVE A 1 (ESCALATED 6 .5%/yr. ) BENEFITS FROM LOCAL FACILITIES To 1975 : 40 visitor days per person* per year X . 30 allocated to local facilities 12 local visitor days per person per year X 143,000 1974 City population 1,716 ,000 total local visitor days per year • 1 $ 1. 50 value per local visitor day** X 1,716 ,000 total local visitor days per year $ 2 ,574 ,000 user benefits per year from local facilities X 2 years $ 5 , 148 ,000 user benefits to 1975 from local facilities 1 1976-1980 : (Escalator 1. 554) 62 visitor days per person per year X . 30 allocated to local facilities 19 local visitor days per person per year X 197,000 1980 City population 3,743,000 total local visitor days per year $ 2. 33 value per local visitor day X 3,743,000 total local visitor days per year 1 $ 8 ,721,190 user benefits per year from local facilities X 5 years $43,605 ,950 user benefits 1976-1980 from local facilities 1981-1985 (Escalator 2 . 129) 85 visitor days per person per year X . 30 allocated to local facilities 25 local visitor days per person per year X 215 ,000 1985 City population • 5 ,375,000 total local visitor days per year $ 3. 19 value per local visitor day • X 5, 375 ,000 total local visitor days per year $17,146 ,250 user benefits per year from' local facilities X 5 years $85, 731 ,250 user benefits 1981-1985 from local facilities 1986-1990 (Escalator 2 . 917) 116 visitor days per person per year X . 30 allocated to local facilities 35 local visitor days per person per year X 240 ,000 1990 City population 8 ,400 ,000 total local visitor days per year $ 4. 37 value per local visitor day X 8 ,400 ,000 total local visitor days per year # $36 ,708 ,000 user benefits per year from local facilities X 5 years $183,540 ,000 user benefits 1986-1990 from local facilities 318,025 ,200 Total user benefits 1974-1990 from local facilities • * SCAG ** Williams-Kuebelbeck i APPENDIX 7 REGIONAL FACILITIES USER BENEFITS: ALTERNATIVE A (ESCALATED 6. 5%/yr. ) BENEFITS FROM REGIONAL FACILITIES: to 1975 : 40 visitor days per person per year X . 50 allocated to regional facilities*** 2D regional visitor days per person per year X 143,000 1974 City population 2 , 860 ,000 total regional visitor days per person per year $ 1.00 value per regional visitor day X 2 , 860 ,000 total regional visitor days per person per year $ 2 , 860 ,000 user benefits per year from regional facilities X 2 years $ 5 ,720 ,000 user benefits to 1975 from regional facilities 1976-1980 : (Escalator 1. 554) 62 visitor days per person per year X . 50 allocated to local facilities 31 regional visitor days per person per year X 197 ,000 1980 City population 6 ,107,000 total regional visitor days $ 1. 55 value per regional visitor day X 6 ,107 ,000 total regional visitor days $ 9 ,465 , 850 user benefits per year from regional facilities X 5 years 47, 329 ,250 user benefit 1976-1980 from regional facilities a 1981-1985 : (Escalator 2 . 129) 85 visitor days per person per year X .50 allocated to local facilities 42 regional visitor days per person per year X 215,000 1985 City population 9 ,154 ,700 total regional visitor days per year • $ 2 . 12 value per regional visitor day X 9 ,154 ,700 total regional visitor days $19 ,407,964 user benefits per year from regional facilities X 5 years $97,039 ,820 user benefits 1981-1985 from regional facilities 1986-1990 : (Escalator 2 .917) 116 visitor days per person per year X . 50 allocated to local facilities 58 regional visitor days per person per year X 240 ,000 1990 City population 14 ,001,600 total regional visitor days per year $ 2 .92 value per regional visitor day X14 ,001,600 total regional visitor days per year $40 , 884 ,672 user benefits per year from regional facilities X 5 years 7 $204 ,423, 360 user benefits 1986-1990 from regional facilities 354,512 ,430 Total user benefits 1976-1990 from regional facilities *** estimated from SCAG data APPENDIX 8 DETERMINING EFFECTIVE SERVICE POPULATION 1 Total Share Of Effective Service Year Population Usage Population 1975 150 ,000 38% 57 ,000 1 1980 197,000 38% 74 , 860 1985 215 ,000 38% 81,700 1990 240 ,000 38% 91,200 1 1 1 1 1 1 1 APPENDIX 9 MISCELLANEOUS SOURCES + USER BENEFITS : ALTERNATIVE A USER BENEFITS FROM BICYCLING: Service Participation Participation User Value Total Year Population Rate Per Year Units Per Year Per Year Benefit 1975 57,000 2. 1 119 ,700 $14 ,950 $ 29 ,900 1976-1980 74, 860 2 . 3 172 ,178 21,500 107 ,500 1981-1985 81,700 2.4 196 ,080 24,500 122 ,500 1986-1990 91,200 2. 45 223,440 27,900 139 ,500 i Bicycle User Benefits 1974-1990 $399 ,400 f S APPENDIX 10 ECONOMIC BALANCE SHEET: ALTERNATIVE A COSTS TO 1975 7 ,501,392 1976-1980 41,138,183 1981-1985 30 ,325,860 1986-1990 38 ,700 ,945 TOTAL 117,666, 380 BENEFITS TOTAL REVENUES 44 ,715 ,284 1 TOTAL BENEFITS LOCAL FACILITIES 318 ,025 ,200 REGIONAL FACILITIES 354 ,512 ,430 MISCELLANEOUS 399 ,400 672 ,937 ,030 TOTAL 717 ,652 ,314 NET COMMUNITY BENEFIT: 559 ,985 ,934 NET MUNICIPAL COST: 72 ,951,096 ' 1_ 1 APPENDIX 11 OPEN SPACE RATIO: ALTERNATIVE A City-Owned City-Owned City Open Space* Open Space Open-Space Ratio Open Space Ratio 'ear Population Acres Acres Per 1,000 Persons Per 1,000 Persons L975 143,000 2 ,140 542 14 .96 3. 79 L980 197,200 2 ,630 802 13. 34 4.07 L990 239 ,900 2 ,630 802 10 .96 3. 34 !000 275 ,100 2 ,631 802 9.56 2.91 APPENDIX 12 ' COST ANALYSIS: ALTERNATIVE B PHASE I: TO 1975 1973 DOLLARS Use Acres Acquisition Development Maintenance Recreation Areas Community Parks Existing 51 nc nc 173,400 Acquired 12 nc 174,000 40,800 Huntington Central Park Existing 167 nc nc 567,800 Acquired 83 nc 1,203,500 282,200 Beaches State 196 nc nc nc County 36 nc nc nc City 50 nc nc 830,350 Private 69 nc nc nc Trails-Bicycle City Existing 5 mi. nc nc unk I City Proposed 5 mi. 200,000 50,000 unk County 14 mi. nc nc nc Trails-Equestrian City 1 mi. 18,000 9,000 200 County 3 mi. nc nc nc Golf Courses Meadowlark 96 nc nc nc Seacliff 140 nc nc nc Resource Preserve State Existing 300 nc nc nc Neighborhood Parks Existing 120 nc nc 408,000 Acquired 25 nc 375,000 85,000 Water Areas I Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control Channels City 22 nc nc nc County 428 nc nc nc Resource Production Oil 1,480 nc nc 88,800 TOTAL 3,608 ac. 218,000 1,811,500 2,476,550 28 mi. X 2 years 4,953,100 COST TO 1975 6,982,600 • COST ANALYSIS: ALTERNATIVE B PHASE 1I: 1976-1980 1980 DOLLARS (Escalator 1.407) Use Acres. Acquisition Development Maintenance Scenic Corridors Greenbelts 8 mi. nc nc unk Highways 6 mi. nc 11800,000 unk Recreation Areas Community Parks • Existing 63 nc nc 301,379 Acquired 12 nc 244,818 57,405 Proposed 15 633,150 306,022 71,757 Central Park Existing 250 nc nc 1,195,950 Proposed 18S 7,770,000 nc nc Beaches State 26S nc nc nc County 36 nc nc nc city SO nc nc 1,168,302 Equestrian Center 40 1.686,400 nc nc trails-Bicycle City Existing 10 mi. nc nc unk City Proposed is ai. 1,013.040 253,260 unk County 14 mi. ac Ac nc Trails-Equestrian City Existing i nc nc 281 City Proposed 3 126,630 50,652 844 County 3 ai. nc nc nc Golf Courses Meadowlark 96 nc nc 11,616 Seacliff 140 nc nc 16,940 Resource Preserve State Existing 300 nc nc nc State Proposed 230 nc nc nc • City Proposed 25 527.625 nc unk Neighborhood Parks Existing 145 nc nc 693,651 Proposed 44 1.957,240 928,620 210,487 4 Additional 68 2,070,280 1,435,140 231,200 • Water Areas Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nC Clood Control Channels • City 22 nc nc nc County 429 no nc nc Resource Production Oil (dec. St/yr) 1,110 nc nc 162,818 Estate Development 192 nc nc nc TOTAL 4,039 ac. 16,486.365 5,018,512 4,068,630 63 mi. x 5 years COS,• 1976-1980 $41.848,027 20,343,1i0 APPENDIX 14 1 COST ANALYSIS: ALTERNATIVE B PHASE III: 1981-1985 1985 DOLLARS (ESCALATOR 1.796) Use Acres Acquisition Development Maintenance ' Scenic Corridors Greenbelts 8 mi. nc nc unk Highways Existing 6 mi. nc nc unk Highways Proposed 6 mi. nc 3,232,800 unk Recreation Areas Community Parks Existing 90 nc nc 549,576 Proposed 16 862,080 416,672 97,702 Central Park ' Existing 250 nc nc 1,526,606 Proposed 185 nc 4,817,770 1,129,684 Beaches State 265 nc nc nc County 36 nc nc nc City 50 nc nc 1,491,308 Equestrian Center 40 nc nc nc Trails-Bicycle City 28 mi. nc nc unk County 14 mi. nc nc nc Trail-Equestrian City 4 mi. nc nc 1,437 County 3 mi. nc nc nc Golf Courses ' Meadowlark 96 nc nc 14,828 Seacliff 140 nc nc 21,623 Resource Preserve State 530 nc nc nc City 25 nc nc nc ' Neighborhood Parks Existing 257 nc nc 1,569,344 Proposed 23 1,239,240 619,620 140,447 Water Area ' Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control Channels City 22 nc nc nc County 428 nc nc nc Resource Production Oil 740 nc nc 1,398,150 Estate Development 365 nc nc nc TOTAL 3,891 ac. 2,101,320 9,086,862 7,940,699 69 mi. X 5 years 39,703,495 • APPENDIX 15 COST ANALYSIS: ALTERNATIVE B PHASE IV: 1986-1990 1990 DOLLARS (ESCALATOR 2.292) Use Acres Acquisition Development Maintenance Scenic Corridors Greenbelts 8 mi. nc nc unk Highways 12 mi. nc nc unk Recreation Areas • Community Parks 106 nc nc 826,036 Central Park 435 nc nc 3,389,868 Beaches State 265 nc nc nc • County 36 nc nc nc City 50 nc nc 1,903,162 Equestrian Center 40 nc nc nc Trails-Bicycle City 28 mi. nc nc unk • County 14 mi. nc nc nc TrailsrEquestrian City 4 mi. nc nc 1,833 County 3 mi. nc nc nc Golf Courses Meadowlark 96 nc nc 18,923 Seacliff 140 nc nc 27,595 Resource Preserve State 530 nc nc nc • City 25 nc nc nc Neighborhood Parks Existing 280 nc nc 2,181,984 Proposed 33 2,269,080 1,134,540 257,162 Water Areas Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control Channel City 22 nc nc unk County 428 nc nc nc • Resource Production Oil 370 nc nc 892,138 Estate Development 547 nc nc nc TOTAL 3,736 ac. 2,269,080 1,134,540 9,498,701 • 69 mi. X 5 years 47,493,505 COST 1986-1990 $50,897,125 1w APPENDIX 16 ' CITY REVENUES GENERATED: ALTERNATIVE B Revenue Per Source Acres Acre Per Year Yearly Revenue TO 1975: Parks 458 $ 347 $ 158,926 ' Beaches 50 5,393 269,650 Golf Courses 236 97 22,892 Oil 1,480 1,112 1,645,760 $ 2,097,228 X 2 years $ 4,194,456 1976-1980 (Escalator 1.407) Parks 597 $ 488 $ 291,336 Beaches 50 7,588 379,400 Golf Courses 236 136 32,096 Oil 1,110 1,564 1,736,040 $ 2,438,872 X 5 years $12,194,360 1981-1985 (Escalator 1.796) Parks 821 $ 623 $ 511,483 Beaches 50 9,686 484,300 Golf Courses 236 174 41,064 Oil 740 1,997 1,477,780 $ 2,514,627 X 5 years $12,573,135 1986-1990 (Escalator 2.292) Parks 854 $ 795 $ 678,930 , Beaches 50 12,361 618,050 Golf Courses 236 222 52,392 Oil 370 2,549 943,130 $ 2,292,502 X 5 $11,462,510 TOTAL REVENUES 1974-1990 $38,348,761 APPENDIX 17 LOCAL FACILITIES USER BENEFITS: ALTERNATIVE B (ESCALATED 6.5i/yr.) BENEFITS FROM LOCAL FACILITIES TO 1975: . 40 visitor days per person• per year X .30 allocated to local facilities 12 local visitor days per person per year X 143,000 1974 City population 1,716,000 total local visitor days per year • 1.50 value per local visitor day• X 1,716,000 total local visitor days per year $ 2,574,000 user benefits per year from local facilities x 2 years $ 5,148,000 user benefits to 1975 from local facilities 1976-1980: (Escalator 1.554) 62 visitor days per person per year x .30 allocated to local facilities 19 local visitor days per person per year X 197,000 1990 City population • 3,743,000 total local visitor days per year $ 2.33 value per local visitor day X 3,741,000 total local visitor days per year $ 8,721.190 user benefits per year from local facilities X 5 years • $43,605,950 user benefits 1976-1980 from local facilities 1981-1965: (Escalator 2.129) 85 visitor days per person per year X .30 allocated to local facilities 25 local visitor days per person per year • X 215,000 196S City population 5,375,000 total local visitor days per year $ 3.19 value per local visitor day X 5,375,000 total local visitor days per year $17,146,250 user benefits per year from local facilities $95,731,250 user benefits 1981-1985 from local facilities 1906-1990: (Escalator 2.917) 116 visitor days par person per year X .30 allocated to local facilities 35 local visitor days per person per year X 240,000 1990 City population 8,400,000 total local visitor days per year $ 4.37 value per local visitor day X 8,400,000 total local visitor days per year $36,708,000 user benefits per year from local facilities X 5 years $183,540,000 user benefits 1986-1990 from local facilities $318,025,200 Total user benefits 1974-1990 from local facilities • SCAG •• Williams-Kuebelbeck APPENDIX 18 REGIONAL FACILITIES USER BENEFITS: ALTERNATIVE B (ESCALATED 6.5%/yr.) BENEFITS FROM REGIONAL FACILITIES: TO 1975: 40 visitor days per person per year X .50 allocated to regional facilities••• 20 regional visitor days per person per year X 143,000 1974 City population 2,860,000 total regional visitor days per person per year $ 1.00 value per regional visitor day X 2,860,000 total regional visitor days per person per year $ 2,860,000 user benefits per year from regional facilities X 2 years $ 5,720,000 user benefits to 197E from regional facilities 1976-1980: (Escalator 1.554) ' 62 visitor days per person per year X .50 allocated to local facilities 31 regional visitor days per person per year k X 197,000 1980 City population 6,107,000 total regional visitor days $ 1.55 value per regional visitor day x 6,107,000 total regional visitor days $ 9,465,850 user benefits per year from regional facilities X 5 years $47,329,250 user benefit 1976-1980 from regional facilities 1981-1985: (Escalator 2.129) 85 visitor days per person per year X .50 allocated to local facilities 42 regional visitor days per person per year X 215,000 1965 City population 9,154,700 total regional visitor day■ per year $ 2.12 value per regional visitor day X 9,154,700 total regional visitor days $19,407,964 user benefits per year from regional facilities • x 5 years $47,039,820 user benefits 1981-198S from regional facilities 1966-1990: (Escalator 2.917) 116 visitor days per person per year X .50 allocated to local facilities 58 regional visitor days per person per year ' x 240,000 1990 City population 14,001,600 total regional visitor days per year $ 2.92 value per regional visitor day X14,001,600 total regional visitor day■ per year $40,884,672 user benefits per year from regional facilities ' X 5 years $204,423,360 user benefits 1986-1990 from regional facilities $354,512,430 Total user benefits 1976-1990 from regional facilities ••• estimated from BCAG data ' • APPENDIX 19 DETERMINING EFFECTIVE • SERVICE POPULATION Total Share of Effective Service Year Population Usage Population 1975 150 ,000 38% 57,000 • 1980 197 ,000 38% 74,860 1985 215 ,000 38% 81,700 1990 240 ,000 38% 91,200 • • • • • 1 APPENDIX 20 MISCELLANEOUS SOURCES 1 USER BENEFITS: ALTERNATIVE B USER BENEFITS FROM BICYCLING: Service Participation Participation User Value Total ' Year Population Rate Per Year Units Per Year Per Year Benefit 1975 57,000 2 .1 119 ,700 $14 ,950 $ 29 ,900 1976-1980 74 ,860 2. 3 172 ,178 21,500 107 ,500 1981-1985 81,700 2. 4 196 ,080 24,500 122 ,500 1986-1990 91,200 2 . 45 223,440 27,900 139 ,500 BICYCLE USER BENEFITS 1974-1990 $399 ,400 ; USER BENEFITS FROM HORSE RIDING: 1975 57,000 .04 2 ,280 $ 300 $ 600- 1976-1980 74, 860 .05 3 ,743 600 3 ,00.0 1981-1985 81,700 . 05 4,085 750 3 ,750 1986-1990 91,200 .05 4 ,650 900 • 4 ,500 HORSE RIDING USER BENEFITS 1974-1990 $11,800 USER BENEFITS FROM SCENIC HIGHWAYS : 1 1975 57 ,000 6. 3 359 ,100 $ 3,590 $ 7 ,180 1976-1980 74 ,860 6 . 6 494,076 4 ,940 24 ,700 1981-1985 81,700 6. 8 555 ,560 5 ,555 27 , 775 1 1986-1990 91,200 7.0 638 ,400 6 ,384 31,920 SCENIC HIGHWAY USER BENEFIT 1974-1990 $91,575 1 TOTAL MISCELLANEOUS BENEFITS 1974-1990 $502 ,775 1 1 r APPENDIX 21 ECONOMIC BALANCE SHEET: ALTERNATIVE B COST To 1975 $ 6 ,982 ,600 1976-1980 41,848 ,027 • 1981-1985 50 ,891,677 1986-1990 50 , 897 ,125 TOTAL $150 , 619 ,429 BENEFITS TOTAL REVENUES $ 38 ,348 ,761 TOTAL BENEFITS LOCAL FACILITIES 318 ,025,200 REGIONAL FACILITIES 354,512 ,430 MISCELLANEOUS 502 ,775 $673,040 ,405 TOTAL $711, 389 ,166 NET COMMUNITY BENEFIT $560 ,769 ,737 a NET MUNICIPAL COST $112 ,270 ,668 a APPENDIX 22 OPEN SPACE RATIO: ALTERNATIVE B City-Owned City-Owned City Open Space* Open Space* Open Space Ratio Open Space Ratic Year Population Acres Acres Per 1,000 Persons Per 1,000 Person: 1975 143,000 2 ,128 530 14. 88 3. 70 1980 197,200 2,929 709 14. 85 3. 59 1990 239 ,900 3,366 991 14 .03 4. 13 2000 275 ,100 3, 366 991 12. 23 3. 60 * Excluding Resource Production APPENDIX 23 COST ANALYSIS: ALTERNATIVE C PHASE I: 1975 1973 DOLLARS Use Acres Acquisition Development Maintenance • Recreation Areas Community Parks Developed 51 nc nc $ 173,400 Acquired 24 nc $ 348,000 81,600 Huntington Central Park Developed 167 nc nc 567,800 Acquired 83 nc 1,203,500 282,200 Beaches State 196 nc nc nc County 36 nc nc nc City 50 nc nc 830,350 Private 69 nc nc nc Trails-Bicycle City Existing 5 mi. nc nc unk City Proposed 10 mi. S 400,000 100,000 unk County 14 mi. nc nc nc Golf Courses Meadowlark 96 nc nc 8,256 • Seacliff 140 nc nc 12,040 Resource Preserve State Existing 300 nc nc nc Neighborhood Parks Developed 120 nc nc $ 408,000 • Acquired 25 nc $ 375,000 85,000 Proposed 22 $ 660,000 330,000 74,800 Water Areas Huntington Harbour 258 nc nc nc • Santa Ana River 75 nc nc nc Flood Control Channels City 22 nc nc unk County 428 nc nc nc Resource Production Oil 1,480 nc nc 88,800 Agriculture 420 nc nc nc TOTAL 4,062 ac. $1,060,000 $4,713,000 $2,612,246 29 mi. X 2 years $5,224,492 COST TO 1975 $10,997,492 APPENDIX 24 COST ANALYSIS: ALTERNATIVE C PHASE II: 1976-1980 (ESCALATOR 1.407) 1980 DOLLARS Use Acres Acquisition Development Maintenance Scenic Corridors Greenbelts 8 mi. $ 140,000 nc unk Highways 6 mi. nc $1,800,000 unk Recreation Areas ' Community Parks Existing 75 ac. nc nc $ 358,785 Proposed 31 1,308,510 632,446 148,297 Central Park Existing 250 nc nc 1,195,950 Proposed 185 7,808,850 nc nc Beaches State 265 nc nc nc County 36 nc nc nc I City 50 nc nc 1,168,302 Equestrian Center 40 1,688,400 nc nc Trails-Bicycle City Existing 15 mi. nc nc unk City Proposed 13 mi. 52,000 130,000 unk County 14 mi. nc nc nc Trails-Equestrian City Proposed 6 mi. 151,956 75,978 1,688 County 3 mi. nc nc nc Golf Courses Meadowlark 96 nc nc 11,616 Seacliff 140 nc nc 16,940 Resource Preserve State 530 nc nc nc ' City Proposed 627 $13,232,835 nc unk Neighborhood Parks Existing 167 nc nc $ 798,894 Proposed 22 928,620 $ 464,310 105,243 Additional 68 2,870,280 1,435,140 231,200 Water Areas Huntington Harbour 258 nc nc nc Santa Ana River 75 nc nc nc Flood Control Channels City 22 nc nc unk County 428 nc nc nc Resource Production (decrease 5%/yr.) Oil 1,110 nc nc 162,818 Agriculture 420 nc nc nc TOTAL 4,895 ac. $28,181,450 $4,537,874 $4,199,733 65 mi. X 5 years APPENDIX 25 • COST ANALYSIS: ALTERNATIVE C PHASE IIIs 1981-1995 (ESCALATOR 1.796) 1985 DOLLARS Use Acres Acquisition Development Maintenance Scenic Corridors Greenbelts 8 mi. nc nc unk Highways Existing 6 mi. nc nc unk Highways Proposed 6 mi. no $3,232,800 unk Recreation Areas Community Parks 106 ac. nc nc S 647,278 Central Park Existing 250 ac. Ac nc 1,526,600 Acquired 185 so. nc 4,817,770 1,129,684 . Bolsa Chica Park S47 ac. $29,472,360 nc nc Beaches State 265 nc ac nc t County 36 nC nc nc City SO no nc 1,491,300 Equestrian Center 40 nc no nc Trails-Bicycle City 28 ni. nc nc unk County 14 si. ne Ac nc Trails-Equestrian City Existing 4 mi. nc nc 2,15S City Proposed 3 mi. %,964 48,492 1,077 County 3 mi. no no nc Golf Courses Meadowlark 96 nc nc $ 14,828 Seacliff 140 nc nc 21,624 Resource Preserve State 530 nc nc nc City 627 nc nc nc Neighborhood Parke Existing 257 nc nc 1,569,344 Proposed 23 S 1,239.240 S 619,620 140,447 Water Areas Huntington Harbour 259 nc nc no Santa Ana River 75 nc nc nc Flood Control Channels City 22 nc nc unk County 426 nc nc nc Resousce Production Oil (dec. 56/yr.) 740 ac nc 1,398,150 Agriculture 420 nc nc nc TOTAL 5,09S $30,008,504 $6,719,692 $ 7,942,495 62 mi. X S Years $39,712,475 COST 1981 TO 1995 $79,239,741 APPENDIX 26 COST ANALYSIS: ALTERNATIVE. C PILASE IV: 1986-1990 (ESCALATOR 2.292) 1990 DOLLARS Use Acres Acquisition Development Maintenance Scenic Corridors Greenbelts 8 mi. nc nc unk Highways 12 mi. nc ne unk Recreation Areas Community Parks 106 nc nc 5 826,036 Central Park. 435 nc nc 3,389,868 Bolsa Chica Park 547 nc $18,178,998 4,262,661 Beaches State 265 ne nc ne County 36 nc nc ne City SO nc nc 1,903,162 Equestrian Center 40 nc nc nc Trails-Bicycle City 28 mi. nc nc unk County 14 mi. nc n,' nc t Trails-ttluestrlan City 9 mi. nc nc 4,125 County 3 mi. nc nc ne (Golf Courses Meadowlark 96 nc nc 18,922 , Seacliff 140 nc nc 27,595 RCSOUrce Preserve St•wLe 530 ne nc nc City 627 ne m' nc Nei.hborhood Perks , kaist.m t 2R0 nr nc S 2,181,984 1•roposcd 33 S 2,269,080 $ 1,134,540 257,162 W.ttcr Arca; Ilnuf in,trun Harbour 258 ne nc nC S,utt.t Atia Ittvor 75 ne nc nc , I'►ood Control Channels City 22 nc nc unk Counry 428 nc nC nc Resource Production Oil 370 nc nr 892,138 ' Agriculture 420 nc ---TIC nc TOTAL 4,75R $2,269,080 $19,313,538 513,763,653 74 ati. X 5 $68,818,265 COST 1986-1990 $90,400,883 1 APPENDIX 27 CITY REVENUES GENERATED: ALTERNATIVE C Revenue Per Source Acres Acre Per Year Yearly Revenue TO 1975: Parks 492 $ 347 $ 170,724 Beaches 50 5,393 269,650 Golf Courses 236 97 22,892 Oil 1,480 1,112 1,645,760 $ 2,109,026 X 2 years SUBTOTAL $ 4,218,052 1976-1980: (Escalator 1.407) Parks 613 $ 488 $ 299,144 Beaches 50 7,588 379,400 Golf Courses 236 136 32,096 Oil 11110 1,564 1,736,040 + $ 2,446,680 X 5 years SUBTOTAL $12,233,400 1981-1985: (Escalator 1.796) Parks 821 $ 623 $ 511,483 Beaches 50 9,686 484,300 Golf Courses 236 174 41,064 Oil 740 1,997 1,477,780 $ 2,514,627 X 5 years SUBTOTAL $12,573,135 1986-1990: (Escalator 2.292) Parks 1,401 $ 795 $ 1,113,795 Beaches 50 12,361 618,050 • Golf Courses 236 222 52,392 Oil 370 2,549 943,130 $ 2,727,367 X 5 years SUBTOTAL $13,636,835 TOTAL 42,661,422 APPENDIX 28 LOCAL FACILITIES USER BENEFITSi ALTERNATIVE C (ESCALATED 6.56/yr.) BENEFITS FROM LOCAL FACILITIES TO 1975: 40 visitor days per person per year X .30 allocated to local facilities 1 12 local visitor days per person per year X 143,000 1974 City population 1,716,000 total local visitor days per year $ 1.50 value per local visitor day X 1,716,000 total local visitor days per year ' $ 2,574,000 user benefits per year from local facilities X 2 years $ 5,148,000 user benefits to 1975 from local facilities 1976-1960: (Escalator 1.554) ' 62 visitor days per person per year X .30 allocated to local facilities 19 local visitor days per person per year X 197,000 1980 City population 3,743,000 total local visitor days per year i 2.33 value per local visitor day I X 3,743,000 total local visitor days per year $ 4,721.190 user beaefite per year frem local facilities x S years f 43,"S.SSO user benefits 1976-1900 from local facilities 1 1981-19853 (Escalator 2.129) 85 visitor days per person per year X .30 allocated to local facilities 25 local visitor days per person per year X 215,000 1995 City population ' 5,375.000 total local visitor days per year i 3.19 value per local visitor day X 5,375,000 total local visitor days per year $ 17,146,250 user benefits per year from local facilities X 5 years ' 6 85,731,250 user benefits 1981-1965 from local facilities 1996-19991 (Escalator 2.917) 116 visitor days per person per year X .30 allocated to local facilities 35 local visitor days per person per year 1 X 240,000 1990 City population 0,400,000 total local visitor days per year $ 4.37 value per local visitor day X 8,400,000 total local visitor days per year i 36,708,000 user benefits per year from local facilities 1 X 5 years $183.540,000 user benefits 1996-1990 from local facilities $318,025,200 Total user benefits 1974-1990 from local facilities P , e • APPENDIX 29 REGIONAL FACILITIES USER BENEFITS: ALTERNATIVE C (ESCALATED 6.51/yr.) BENEFITS FROM REGIONAL FACILITIES: TO 1975% 40 visitor days per person per year X .50 allocated to regional facilities 20 regional visitor flays per person per year x 143,000 1974 City population 2.860,000 total regional visitor days per person per year $ 1.00 value per regional visitor day X 2,860,000 total regional visitor days per person per year $ 2,860,000 user benefits per year from regional facilities X 2 years $ 5,720,000 user benefits to 1975 from regional facilities • 1976-1980: (Escalator 1.554) 62 visitor days per person per year x .50 allocated to local facilities 31 regional visitor days per person per year x 197,000 1980 City population • 6,107,000 total regional visitor days $ 1.55 value per regional visitor day X 6,107,000 total regional visitor days $ 9,465,850 user benefits per year from regional facilities x 5 years p $ 47,329,250 user benefit 1974-1960 from regional facilities 1981-19851 (Escalator 2.129) 85 visitor days per person per year x .50 allocated to local facilities 42 regional visitor days per person per year x 215,000 1985 City population $ 9,154,700 total regional visitor days per year $ 2.12 value per regional visitor day X 9,154,700 total regional visitor days $ 19,407,964 user benefits per year from regional facilities x 5 years $ 91,039,820 user benefits 1901-1985 from regional facilities 1986-1990t (Escalator 2.917) 116 visitor days per person per year x .50 allocated to local facilities 58 regional visitor days per person per year i x 240,000 1990 City population $ 14,001,600 total regional visitor days per year $ 2.92 value per regional visitor day . X 14,001,600 total regional visitor days per year $ 40,984,672 user benefits per year from regional facilities x 5 years $204,423,360 user benefits 1986-1990 from regional facilities $354,512,430 Total user benefits 1976-1990 from regional facilities I APPENDIX 30 DETERMINING EFFECTIVE SERVICE POPULATION Total Share of Effective Service Year Population Usage Population 1975 150 ,000 38% 57,000 1980 197 ,000 38% 74 ,860 1985 215,000 38% 81,700 1990 240 ,000 38% 91,200 APPENDIX 31 MISCELLANEOUS SOURCES USER BENEFITS : ALTERNATIVE C USER BENEFITS FROM BICYCLING: a Service Participation Participation User Value Total Year Population Rate Per Year Units Per Year Per Year Benefit 1975 57 ,000 2 .1 119 ,700 $14 ,950 $ 29 ,900 ♦ 1976-1980 74,860 2. 3 172 ,178 21 ,500 107 ,500 1981-1985 81,700 2.4 196 ,080 24,500 122,500 1986-1990 91,200 2. 45 223,440 27,900 139 ,500 • Bicycle User Beneftts 1974-1990. $399 ,400 USER BENEFITS FROM HORSE RIDING: 1975 57 ,000 .04 2,280 $ 300 $ 600 1976-1980 74 ,860 .05 3,743 600 3,000 1981-1985 81,700 .05 4 ,085 750 3,750 • 1986-1990 91,200 .05 4,650 900 4,500 Horse Riding User Benefits 1974-1990 $ 11,800 USER BENEFITS FROM SCENIC HIGHWAYS : 1975 57,000 6. 3 359 ,100 $ 3,590 $ 7 ,180 1976-1980 74,860 6. 6 494,076 4 ,940 24 ,700 1981-1985 81,700 6 . 8 555,560 5 ,555 27,775 1986-1990 91,200 7.0 638 ,400 6 ,384 31,920 Scenic Highway User Benefits 1974-1990 $ 91,575 40 TOTAL MISCELLANEOUS BENEFITS 1974-1990 $502 ,775 mp 1 APPENDIX 32 ECONOMIC BALANCE SHEET : ALTERNATIVE C 1 COST TO 1975 $ 10 ,997 ,492 1976-1980 53,717,989 1 1981-1985 79 ,239 ,741 1986-1990 90,400,883 TOTAL $234, 356 ,105 BENEFITS TOTAL REVENUES $ 42 ,661,422 TOTAL BENEFITS LOCAL FACILITIES $318 ,025,200 REGIONAL FACILITIES 354 ,512 ,430 MISCELLANEOUS 502 ,755 SUBTOTAL $673,040, 385 TOTAL $715,701,807 NET COMMUNITY BENEFIT $481,345,702 NET MUNICIPAL COST $191,694 ,683 1 1 I APPENDIX 33 OPEN SPACE RATIO: ALTERNATIVE C City-Owned City-Owned City Open Space* Open Space* Open Space Ratio Open Space Ratio Year Population Acres Acres Per 1,000 Persons Per 1,000 Person 1975 143,000 2 ,162 564 15. 11 3.94 1980 197,200 2 ,513 1, 312 12. 75 6.65 1990 239 ,900 3,968 2 ,140 16.53 8.92 2000 275,100 3,968 2 ,140 14.42 7. 77 * Excluding resource production HUNTINGTON BEACH PLANNING DEPARTMENT *RICHARD HARLOW Director *EDWARD SELICH Senior Planner *.MONICA FLORIAN Associate Planner DAVE EADIE Associate Planner AL MONTES Assistant Planner MAUREEN WILD Assistant Planner SAVOY BELLAVIA Assistant Planner FRED RITTER Assistant Planner JOHN COPE Assistant Planner *EMILIE JOHNSON Planning Aide CHARLES LAUMANN Planning Aide BOB KIRBY Planning Aide SERGIO MARTINEZ Planning Aide THOM JACOBS Illustrator *GEORGE ERMIN Planning Draftsman BOB SIGMON Planning Draftsman ALAN LEE Planning Draftsman JUNE ALLEN Administrative Secretary JANA HARTGE Principal Clerk SUSAN PIERCE Secretary-Typist GISELA CAMPAGNE Secretary *MARY CARDINAL Clerk-Typist *Participating Staff REPORT BY:ADVANCE PLANNING STAFF