Supervisors approve LCP Update

EXAMINING THE COUNTY’S NEW BURNHAM STRIP ORDINANCE (part 1 of 3)

Last month the Supervisors surprised most observers by voting unanimously to prohibit residential development of Burnham Strip’s nine vacant parcels. An ordinance to that effect, passed yesterday (November 14th), actually goes much further than just prohibiting houses: with the exception of the largest parcel, all development on the other eight parcels (ranging from 6,000 sq. ft. to 2.5 acres) is strictly banned. Here’s how the ordinance reads:

“All new development must meet the following minimum standards: 1. Minimum Parcel Area: 3.5 acres.” (p. 109, LCP Update Correspondence, October 25th, 2006)

That sentence was pretty easy to miss. To my knowledge, the blanket prohibition against any development of all but one of the Burnham Strip parcels hasn’t been publicly mentioned or discussed by the Supervisors, County Counsel, Planning Staff, the news media, or interested Coastsiders. Oddly, the language first appeared deep within the documents package (p. 126, Appendix B) circulated before the October meeting where the policy aboutface occurred. The package’s cover letter (p. 7) summarizes the Burnham Strip issue by stating:

“The Subcommittee has revised its recommendation to allow single-family residence [sic] on all Burnham Strip parcels.”

The problem with that statement is that it cannot be reconciled with the statutory language found later in the same document, which prohibits any development on eight of the nine parcels. And the problem with the blanket prohibition is that it may have the unintended consequence of jeopardizing the County’s ability to preserve the Strip for future public use, something all five Supervisors have expressed as a policy goal.

THE DANGERS OF INDIRECTION (part 2 of 3)

This position–that the best and highest use for Burnham Strip is public–is shared by many, and frames the central question here: have the Supervisors in fact moved the community closer to securing that objective?

A more straightforward approach would have been for the County to simply exercise eminent domain over the nine vacant parcels. Such deliberate, direct action would guarantee the space’s preservation for public use, and conclude the matter in a timely and orderly fashion. The cost of justly compensating the property owners at fair market value would be far less than amounts that have been recently spent on open space acquisition in our district. There are a number of well-endowed private trusts, and even public agencies, that exist for this very purpose. Unlike many properties purchased for open space, Burnham Strip is centrally located, lying tightly between a unique coastal community and its heavily used beaches. Thousands of people pass right by it every day.

The Supervisors instead chose an indirect approach to ‘saving the Strip,’ which disregards the legal advice of County Counsel, delivered as recently as last February:

“County Counsel determined that in order to withstand a legal challenge for prohibiting single-family residences, the County would need to prove that the non-residential uses allowed by zoning would be feasible and provide a reasonable economic return to property owners. Based on a consultant-prepared economic study, County Counsel concluded that only two parcels (2.5 and 6.2 acres) are clearly large enough to accommodate the permitted non-residential uses and provide a reasonable economic return.” (p.25, LCP Update Correspondence, February 14, 2006)

Throughout the LCP update, County Counsel’s concern was that non-residential uses wouldn’t provide a reasonable economic return for the owners of the smaller parcels. Now the Supervisors have eliminated the possibility of even non-residential development for eight of the nine vacant parcels. To state the obvious, the ordinance passed yesterday provides nothing remotely resembling a reasonable economic return for the affected property owners.

Readers may wonder whether there is perhaps some use available to the property owners that doesn’t fall under the definition of ‘development.’ LCP Policy 1.2 defines the term, following Coastal Act Section 30106, and as you might expect, ‘development’ includes just about everything: all construction and structures (even temporary), grading, removal of major vegetation, etc. Agriculture is generally not considered ‘development,’ but of course the parcels in question are far too small for farming to provide a reasonable economic return. At any rate, the farming couldn’t cause any “change in the intensity of use of water,” because that also falls under the definition of ‘development.’

WHAT’S THE WORST THAT CAN HAPPEN? (part 3 of 3)

Suppose one or more of the property owners files a class action over the downzoning, claiming that the ordinance is a regulatory taking; in other words, that it restricts the use of the eight properties so thoroughly and unreasonably as to exercise de facto eminent domain. The plaintiffs would have some strong arguments: the ordinance’s blanket prohibition against “all” development, the stated opinions of County Counsel and Planning Staff advising against excessive downzoning, similar advice from land use experts hired by the County, as well as the Supervisors’ professed desire to preserve the “open characteristics” (as described in the ordinance’s preamble) of Burnham Strip.

If the property owners prevailed in court, the remedy would be uncertain. It might be ‘just compensation’ for a taking, in which case the County and community would arrive, however indirectly, at the goal of Burnham Strip as public space. Another judicial remedy, just as plausible, would set the unlawful ordinance aside and restore the property owners’ ability to residentially develop. In any event, as the situation stands today, two (and possibly more) of the parcels will proceed with grandfathered residential applications.

Indirection in policy formation is rarely successful, and more often invites the Law of Unintended Consequences to take over. If the goal is to preserve Burnham Strip for future public use–as it clearly is–a straightforward approach from government not only would have respected the property owners and community, it would more securely guarantee that the policy objective is achieved.

After these many, many thousands of words, one only has to remember that Rich Gordon is adamantly opposed to the use of eminent domain.

Don: I haven’t read the entire LCP submittal, however: couldn’t one or more of the parcels on the Burnham Strip just be combined in order to meet the min. requirements of the proposed LCP revisions thus “creating” a parcel of sufficient size to meet the standard and be developed with a house?

Under the current COSC zoning, the minimum parcel size is 2 acres. That has not slowed down the County from accepting development applications and trying to railroad them past many many obstacles. In most of the unincorporated Midcoast, the residential zoning minimum is 5000 sq ft, yet the County gleefully approves applications to build on parcels as small as half that. In short, in San Mateo County, zoning minimums aren’t worth the paper they’re printed on. The change from a 2 acre minimum to a 3.5 acre minimum is a red herring.

Contrary to Don’s characterization, the new zoning does not prohibit all development. There are still many allowed uses. Just because the property owners all have the hope and expectation of making a killing building houses on their property doesn’t mean squat.

The February memo from County Counsel which Don quotes this from “provide a reasonable economic return to property owners.” is simply wrong. Yeah, I’m not a lawyer, but I play one on TV. Seriously, a long memo regarding takings case law, written by a top land use lawyer in California, was submitted to the BoS and refutes the claims in the February County Counsel memo. Simply put, if any viable economic use remains, it’s not a takings. Even if the property owner can’t sell it for what they paid, it’s not a takings. As long as any use remains for which someone might come forward and buy the property, it’s not a takings. That’s settled California case law, like it or not. Therefore, the new zoning cannot result in a successful takings claim. Property owners may win in SMC Superior Court, but they will lose on appeal. The appeals court uses different standards. And different judges.

Mark — sure, properties could be merged, but it doesn’t happen as long as the County will approve anything, regardless of how non-conforming the parcel size is. Same problem in the 5,000 (and 10,000) sq ft minimum zoning districts — 2 2,500 sq ft parcels side by side, different owners, neither is willing to buy or sell to the other because each knows that the County will approve both of their applications.

Watch/Tape last Tuesday’s BOS mtg. at 10:00 a.m. on MCTV (CH6)- 11/20/06. The BOS approved of Re-Zoning Amendments (Not Sent to the Coastal Commission for their Review) of RM/CZ, Open Space, AG, PAD Lands to an overlay complete with min. parcel size of 5,000 sq.ft. & max. house size and also impose on these same areas & all S-17 areas, the detmn. that 3,500 sq.ft. lots or larger yet under the 5,000 sq.ft. Zoning Lot Min. Req. for El Granada, Princeton, Moss Beach & Montara will be considered BUILDABLE, AS A MATTER OF RIGHT with a 53% FAR/% Lot Coverage allowance - 2nd largest of any other City or Unincorporated Area in San Mateo County, and this is a COASTAL ZONE!

This came about via a cooked up Task Farce where there was NO LEGAL REPRESENTATION for the Tax-Paying Homeowner/Residents in the Mid-Coast & whose membership included Ex-County Attorney, Dave Byers, assorted builders, realtor, Judy Taylor, MCC members April Vargas, Chuck Kozak & others with full participation by Supervisor Gordon & Terry Burnes.

Note that whatever the County construes to be “Affordable Housing” or “Market Rate Housing” (= DE FACTO PUD) built on the multitude of 25’ SS Lots not even represented in County’s over-estimated LCP Buildout Numbers from the 1980’s, in singles or in groups, WON’T BE COUNTED IN COUNTY’S YEARLY GROWTH RATE CONTROLS!

“Affordable Housing” was incorrectly swung into County’s so-called “LCP Update” and should have had a Separate Public Hearing because building on the multitude of 25’Substandard Lots would GREATLY INCREASE THE INTENSITY OF THE LAND USE IN THE MID-COAST.

Barb Mauz