Humboldt County Municipal Code § 7.2 Public Coastal Access Protection Review

road and the sea shall be reviewed during the application check, project review, and public review, as required in this Code, to determine if the proposed development is located within an area with indications of public use. (Former Section CZ#A315-9(A))

If the Department determines that the proposed

development is located within an area with indications of public use, the applicant shall submit any information she or he may have relevant to the public access question. (Former Section CZ#A315-9(A)(1); Amended by Ord. 2214, 6/6/00)

During the project review, the Department shall conduct a

survey of property owners and occupants within three hundred (300) feet of the project boundary, interested public agencies, and anyone who has previously requested notification pursuant to this Code. The purpose of the survey is to obtain evidence concerning public access on the project site. The survey shall include inquiries related to frequency of use, the year the use started, whether or not the area was posted or the user asked permission of the property owner, and if other members of the general public were observed using the access. The Department shall conduct the survey consistent with the State of California Department of Justice Attorney General Manual on implied dedication and prescriptive rights. (Former Section CZ#A315-9(A)(2); Amended by Ord. 2214, 6/6/00)

Consistent with Section 312-7.2.1.4 and 312-7.2.1.5, the Department shall

review all of the available evidence relevant to the public access question and present findings and recommendations to the Planning Commission. The Planning Commission shall make the actual determination as to whether there is substantial evidence of historic public use of the accessway. However, the Planning Commission may request a review of the evidence by an attorney, selected by the Board of Supervisors, qualified to receive and evaluate evidence relevant to the public access question and make appropriate findings and recommendations to the Planning Commission. The Planning Commission shall consider the findings and recommendations prior to making a determination. (Former Section CZ#A315-9(A)(3); Amended by Ord. 2214, 6/6/00)

the public has been impliedly dedicated shall be determined based on evidence of all of the following:

Where an issue as to the existence of public prescriptive rights has been raised during the

course of reviewing a Coastal Development Permit application, one (1) of the following findings shall be made:

requires denial of a Coastal Development Permit because of interference with those rights;

applicant’s dedication of a public access protects the rights of the public and is equivalent in time, place and manner to any prescriptive rights which may exist.

Development shall be sited and designed in a manner which does

not interfere with or diminish any public right of access which may have been established based on substantial evidence of historic public use. Only when site constraints are so severe that siting of the access way or recreational use area in its historic location would significantly impair the proposed development and alternative development siting is not feasible, development may be sited in the area of public right of access based on historic use provided that the applicant provides an equivalent area of public access or recreation to and along the same destination and including the same type and intensity of public use as previously existed on the site. Mechanisms for guaranteeing the continued public use of the area or equivalent area shall be required.

In permits where evidence shows the possibility of such prescriptive

rights, the following language shall be added as a condition;

“Nothing in this permit shall be construed to constitute a waiver of any prescriptive rights which may exist on the parcel itself or on the designated easement;”

The determination of the Planning

Commission that substantial evidence does or does not exist may be appealed to the Board of Supervisors pursuant to Section 312-13, Appeal Procedures. (Former Section CZ#A315-9(A)(4))