The battle to determine the quality and character of the Gaviota Coast played out again at the CA Coastal Commission meeting when the Commission heard an appeal from the Gaviota Coast Conservancy, Surfrider, and others regarding the Paradiso del Mare development proposal. The appeal cited a failure of the project to conform to the County’s Local Coastal Program (LCP) standards.
While the project consists of just two residential estates and includes both public easements and dedication of 117 acres of open space, the Paradiso del Mare project has stirred powerful opposition within the environmental community. This intense opposition is partly due to the property’s location at the eastern edge of the Gaviota Coast and, more importantly, the precedent it could create for other nearby properties when they come before the Commission.
Substantial Issues
The issue before the Commission Thursday evening was whether the appeal raised a substantial issue relating to the consistency or inconsistency of the County’s LCP, extent and scope of the development proposal, and the significance of the coastal resources affected by the decision. In a 58-page document that included several hundred pages of appendices, the Commission Staff sided with the County and developer, concluding “no substantial issue is raised with respect to the consistency of the approved development with the policies of the County’s certified LCP.”
In the Coastal Commission world, a finding of substantial issue is a huge one, allowing authority over the project to shift from the local agency (in this case S.B. County) to the Commission. From that point on, any of the issues raised in the appeal or other issues related to LCP compliance are in the Commission’s hands.
Gateway to the Gaviota Coast
Jana Zimmer, who is an at-large Commission appointee from Santa Barbara, referred to the critical importance the project has to the Gaviota Coast in her opening remarks. “First and last thing we need to remember is that this [Paradiso] is the gateway project to the Gaviota Coast,” she said. “It is small in its scope, but it has consequences that go far beyond the decision that we make on these two residences. It is going to set the model.”
Commission member Jeff Duclos echoed Zimmer’s comments. “This [project] is a harbinger of things to come that could change what is a rural character into an urban setting and that to me is a substantial issue,” he said. “What will be the standard for development of the Gaviota Coast, and how much of it should it be developed? We need to look at how this might change the character of the land moving forward.”
Project Constraints
In her comments, Zimmer also noted frustrations that both she and 3rd District County Supervisor Farr had regarding what the County could or couldn’t require when the Environmental Impact Report for Paradiso was developed. “I do believe the county did an excellent job, the best it could under constrained conditions,” Zimmer noted, “had it not had that framework imposed upon them.”
The framework Zimmer was referring to is a settlement agreement reached in April, 2005 between the prior owner of the property and the Coastal Commission in response to a suit filed by ARCO over an earlier proposal for a golf course on the site. The agreement allowed the property owner to pursue a residential development on the two Paradiso lots and for up to 10 homes on the applicant’s adjacent Naples lots, but unfortunately it also appeared to limit the County’s ability to treat all of the lots as a whole or for looking at alternatives on the Naples lots to mitigate issues on the Paradiso ones. This made it difficult for County Planning Staff to look at the potential for vertical access further west on the Naples property or to evaluate the potential for locating the home proposed on the coastal bluffs to be located further to the interior on the Naples lots.
Motion to Support Staff
After her comments, Ms. Zimmer kicked off discussion of the project by making a motion to reach a finding of “no substantial issues,” which the Commission Staff had recommended but then noted that she would be voting against the motion.
It appeared from Zimmer’s earlier comments that she could support the project, but not unless some changes were included that the County had not been able to include. As noted above, should the other Commissioners agree with her, the finding of significant issues would then allow the Commission to take control of the project and provide it with the authority to negotiate adjustments independent of the substantial issue determination.
This approach, however, is fraught with uncertainty since any negotiations from that point on would be handled as a de novo process, which in legal terms means “from the beginning.” At that point, the developer and Commission Staff would work together to address all issues raised in the appeal, but more importantly, it opens the possibility for Staff to look at any other issues related to compliance with the local LCP or the Coastal Act. In short, as one Commissioner noted, it could open a Pandora’s box.
Commission Positions Staked Out
At this point, the Commission meeting began to heat up with other members with a more pro-private-property bent began to weigh in. “We have public use I would consider now as trespass,” said Commission member Martha McClure from Del Norte County. “To declare you would lose access makes no sense. Crossing the freeway to trespass across private property isn’t access that is being lost. I don’t think it is fair to put the burden of proof by people trying to prevent development on the backs of somebody who’s done the right thing.”
When Duclos also added that he felt the size of the residences, which he characterized as two to three times the size of the average Gaviota Coast home, raised a substantial issue, McClure wondered if he didn’t have a clear conflict of interest if he was bringing up issues not raised on appeal. “If someone declares that the size of the homes will be a part of the decision,” McClure asked the Counsel, “will they still have a vote?” The Counsel quickly defused that issue when it noted that any remarks other than those related to the appeal were irrelevant.
“If this project is not consistent on every level of what we ask people to do and what should be a model for development, I don’t know what is,” another Commission member added. “This is the largest and most complete staff report I’ve seen on my 3.5 years on the Commission, and I can’t fathom how we could find substantial issues on this project.”
A Surprising Development
In the midst of the back and forth regarding the merits of the project versus the issues it raised, when it came his turn to speak, Commission Chair Steve Kinsey from Marin County threw a major-league curveball when he asked the developer’s representative, Chris Yelich of Brooks Street, to comment on negotiations between him and Commission Staff.
With Yelich’s permission, the Commission Counsel read from a list of proposed revisions to the 2005 Settlement Agreement that included, clarifying that the water line at the residences will not exceed the minimum necessary for hydrant flow, agreeing not to interfere with the public use of the current vertical access to the Naples surf area until construction of the ocean residence occurs, a prohibition on grading and foundation-related construction activity during pupping season, and an agreement to include both a trail and vertical easement at Tomate West in their project application for development of the Naples lots in the future.
Commission members looked at each other in complete surprise. “I confess to being totally dumbfounded by this process,” Commissioner Mary Shallenberger complained. “The only thing we’ve noticed [for this meeting] is ‘substantial issue,’ and the only thing the public got notice on was substantial issue, and now it feels like we are negotiating a change in the Settlement Agreement in the middle of discussion on a motion. I don’t know how that happens in this setting when Staff comes in with it after a public hearing has been closed.
“First of all, there’s the legality of having a hearing on substantial issue and then negotiating a settlement agreement. How does that happen? What am I missing here?”
At this point, the question became not the discussion about whether the appeal brought up substantial issues but how to proceed. Some suggested a continuance, others to move ahead with a finding of substantial issue. That would allow the Commission to send the project to Staff for resolution of the compliance issues but also extend the process well into the future.
Hoping to find a way out of the mess they’d gotten themselves into, Commissioner Wendy Mitchell wondered if a finding of no substantial issue was approved and whether Staff could revise the agreement to include the new terms offered by Yelich later. Counsel noted that would not be a problem. Another commissioner, Mark Vargas, then urged his fellow members to vote for a finding of no substantive issue and allow Staff to complete the revisions later.
Jana Zimmer then pointedly asked Chris Yelich for an assurance that the developer would follow through. “Are these commitments you are willing to make regardless of how the Commission votes?” Yelich started to answer in a rambling manner when Zimmer cut in to ask for a simple yes or no. “Yes!” Yelich replied, and with that there was a call for the question. The motion carried 8-4 in favor of the developers.
Not the End of the Road
Ironically, much of what Zimmer had hoped to be included in the development proposal, but couldn’t at the County level due to the constraints placed on it by the Settlement Agreement, most likely will end up in it once the agreement is revised, responding to the major issues she raised. However, legal issues facing the development are far from over.
When asked by Commissioner Shallenberger for her thoughts on the way the settlement negotiations were brought up, Ellison Folk, attorney for Surfrider and spokesperson for the appellants at the hearing, replied, “We were not provided any notice of this …. and to have this brought up after testimony was closed, to put an offer in front of the Commission and to say if you don’t find substantial issue, we’ll give you all of these things is completely inappropriate.”
“I am shocked and confused by the breach of Commission practice that occurred,” Attorney Ana Citrin of the Law Offices of Marc Chytilo said in an email to me. “The offer to adjust the settlement agreement came in the middle of deliberations on Commissioner Zimmer’s motion for substantial issue, with no notice to the public and no opportunity for the appellants to review the terms, including Surfrider who is a party to the settlement agreement …. The modifications do not come even close to resolving our appeal issues or even all the issues raised by Commissioners during the hearing …. We will continue to fight this.”
At this point, the fight will be played out in the courtroom. On March 7, 2014, Surfrider and the Gaviota Coast Conservancy filed suit in Santa Barbara County Superior Court charging “the County failed to take legally adequate measures to avoid significant impacts that the Project will have on these resources.” Attorney Citrin estimates that it could take as much as a year from the initial filing to receiving a final ruling on the lawsuit.
Stay tuned.