Good morning (afternoon), Hon. Chair & Commissioners I am MNB for Friends of Trafalgar Canyon.
We submitted various letters throughout this review process- most recently on December 8, 2023.
The application before you is a rehash of a permit application which you have already unanimously denied in 2019. The applicant- Graham property llc- sued over ex parte disclosures and alleged a bunch of other grounds- but the superior court remand was only on the narrow ground of defective ex parte disclosures, not any substantive defects in Commission review or denial. Denial was sound and defensible before in 2019 - and is the only proper course now. (1 min)
Clear from the staff report- Violations of the Coastal Act - project site is in a coastal canyon (violation of landforms-) and City requires variance for that (need to come back to that point); abridges ESHA with insufficient buffer (violation of ESHA protection policies); that there has been illegal ESHA removal (blamed on prior owner but timing is immaterial); Public access will be interfered with (violates Coastal Act)
Nonetheless, despite the multiple violations of the Coastal Act, the staff recommendation is for approval because of the potential for an unconstitutional Taking. Denial is not a Taking. Your attorney- the Attorney General- has clarified the absence of a taking in court documents. There can be no investment backed expectations since the Coastal Act, which prohibits development of the site, has been in place for decades. This is further underscored in the letter from Cooper and Kirk which you have received.
As explained in our letters, because approval would violate both the Coastal Act and CEQA, and denial would not be a taking, the Project must be denied. (2 min.)
The first reason why denial is not a taking is procedural- the project is prohibited by City of San Clemente Code:
This project is in a Coastal Canyon. So the City's LCP prohibits it (as development in a coastal canyon) and requires a variance if it is to be approved.
A variance is required but no variance was granted. City Processing of AIC approval was not a variance.
The City did not consider the correct location of the canyon edge, and that a variance would be required for approval at this site.
Under Commission Regulation section 13052, the application must include a variance but has not yet been granted. So the Commission does not have valid jurisdiction to grant the permit- though it may deny it. You may not assume a variance will be granted. The City's process must be respected and given a chance to make a final determination.
Further reasons that there is no taking in a denial or remand to the City of San Clemente is because there are no reasonable investment backed expectation (3 min).
There can be no reasonable investment backed expectation of being able to build.
Property owner, Graham Property Management is sophisticated commercial entity.
Multiple prior attempts at development of lot failed.
Where variance is required- there can be no taking from denial of variance. (and there would be no diminution in value.)
CEQA would be violated, in addition to violations of the Coastal Act. CEQA's substantive mandate requires a substantiated statement of overriding considerations. PRC 21081 requires that all environmentally superior less damaging alternatives be determined to be infeasible- but that cannot be substantiated here. It also requires that the project's benefits outweigh its significant adverse effects- and that cannot be substantiated here either. The project violates CEQA and the Coastal Act and does not have benefits that outweigh this impact. (4 min).
In summary, the proposed project violates the Coastal Act in multiple ways. Its approval would also violate CEQA. It must be denied outright. The City of San Clemente has not granted any variance as of yet
So the project, if not denied outright, must be returned to the City for further consideration of a possible variance.The cleaner, simpler, process- and one that protects Coastal resources and complies with the Coastal Act without effecting a taking- is to vote for denial of the project. That would allow re-submission of the application with a variance, if one is granted by the City. (5 min). Approval would violate the Coastal Act and CEQA so denial is required.