Mendocino County Municipal Code Ch. 20.718 Public Access

The purpose of this chapter is to implement the public access and recreation policies of Chapter 3 of the Coastal Act and the applicable policies of the Mendocino Town Plan. This Chapter shall apply to all projects in the Town of Mendocino Local Coastal Program segment of the coastal zone which fall within the definition of "development" as set forth in Public Resources Code Section 30106, and in Section 20.608.023(E) of this Division. These public access provisions shall be implemented in a manner that takes into account the need to regulate the time, place, and manner of public access depending on the facts and circumstances of each case, including, but not limited to, topographic an geologic site characteristics and the capacity of the site to sustain use and at what level of intensity.

(Ord. No. 3915 (part), adopted 1995.)

(Ord. No. 4395, § 2, 11-17-2017)

Editor's note— Ord. No. 4395, § 2, adopted November 17, 2017, amended § 20.718.005, to read as set out herein. Previously § 20.718.005 was titled "Purpose."

(A) The coastal trail (path) network, Heeser Drive, Big River Road, and associated upland access support facilities, including but not limited to parking, lavatories, and nature educational signage, shall be maintained, enhanced, and located in the areas of Mendocino Headlands State Park as shown on the Mendocino Town Plan Public Access Maps; provided that public access and support facilities shall be located to protect sensitive species, fragile landforms, coastal resources, and adjacent upland areas against overuse. The Mendocino Town Plan Public Access Maps are illustrative and do not necessarily include all areas that currently provide or could provide public access to the coast. The maps shall be interpreted consistent with the text of the policies of the Mendocino Town Plan and the standards of this chapter of the Mendocino Town Zoning Code.

(B) Prior to the issuance of a coastal development permit for any new development identified in 1—4 of this section, the decision-making authority shall review the proposed development to ensure the protection of public access to the maximum extent feasible consistent with (1) state and federal law; (2) public safety needs; and (3) the need to protect public rights, the rights of private property owners and natural resources from over use. Unless exempted from the requirement to provide public access as set forth in Section 20.718.020, the decision to impose public access requirements shall be based on a nexus between the project and its impacts on public access and recreation. If the decision-making authority determines such a nexus exists, the access required shall be proportional to the impacts of the project on public access and recreation.

(1) New development on any parcel or location specifically identified in the Mendocino Town Plan, the Mendocino Town Plan Public Access Maps, or in the Town LCP zoning districts, or as further provided within this section.

(2) New development between the nearest public roadway and the sea.

(3) New development on any site where there is substantial evidence of a public right of access to or along the sea or public tidelands acquired through use or a public right of access through legislative authorization.

(4) New development on any site where a trail, bluff top access or other recreational access is necessary to mitigate impacts of the development on public access.

(C) For any project where such mitigation is required, the preferred implementation should be through a recorded grant of easement to the County, another public agency, or to a designated private nonprofit association acceptable to the County who is willing to accept the easement and willing to operate and maintain the public accessway or trail. Where grants of easement are not feasible because neither the County, other public agency, nor private nonprofit association is willing to accept, maintain and operate the accessway, implementation of required access mitigation shall be implemented through a recorded Offer to Dedicate (OTD) an easement to a public agency or a designated private nonprofit association acceptable to the County. All conditions of permit approval for offers to dedicate shall include a requirement for an interim deed restriction that states that the terms and conditions of the permit prohibit both interference with any rights of public access in the areas subject to the easement prior to acceptance of the offer and any obstruction of the easement area.

(D) Visitor serving facilities and services on any parcel adjoining the shoreline, or adjacent to a parcel in Mendocino Headlands State Park that adjoins the shoreline, shall provide public access from the first continuous public road or street that parallels the sea to the nearest sustainable path or trail in Mendocino Headlands State Park, consistent with the requirements of (B) above. The access improvements shall be available on an equal basis to the public at large as well as to guests or owners of the permitted development.

(E) Public fishing access shall be maintained, protected and encouraged along the shoreline of the Town, consistent with regulations, promulgated at Title 14 California Code of Regulations, Section 632(b)(1)(25), by the California Department of Fish and Wildlife pursuant to the Marine Protection Act.

(F) A continuous public access way, for use by all the people, shall be located and maintained along sections of Lansing Street, Heeser Drive, Heeser Street, Little Lake Street, Kelly Street, Ukiah Street, and Main Street, and/or, where feasible, within adjacent Mendocino Headlands State Park; provided, that public access improvements or new facilities shall be located to protect sensitive species or other fragile coastal resources, fragile landforms, public and private rights, public safety, and mitigate against the impacts of overcrowding or overuse of any single area.

(G) A continuous public bike trail shall be located in the Highway 1 right-of-way in the Town, to connect with bike trail segments that extend to the north and south of the Town.

(H) The following shall be provided as part of any Highway 1-Big River Bridge improvement or replacement project, between the intersection of Highway 1 at Main Street and the southerly Town boundary:

(1) A continuous public pedestrian/bicycle accessway, separated from the Highway 1 travel lanes. Accessways shall be provided on both sides of the bridge. If an accessway is only feasible on one (1) side of the bridge, the accessway shall be located on the west side.

(2) A continuous public pedestrian path or trail between Big River Beach, east of the Highway 1 bridge, and both the Mendocino Estuary Beach and the Mendocino Headlands State Park blufftop south of Main Street.

(3) The County shall encourage Caltrans to restore and conserve the riparian vegetation located within the Highway 1 right-of-way and adjacent Mendocino Headlands State Park on the southwest corner of the intersection of Highway 1 and Main Street, and improve the area with a public scenic overlook and provide environmental education information about Mendocino Bay and Big River Estuary.

(I) Public access signage to Mendocino Headlands State Park shall be conspicuously posted (1) in the Highway 1 right-of-way at or near the northern and southern entrances to the Town, (2) at the intersections of Main and Lansing Streets, Lansing and Heeser Drive, and Main and Heeser Street. Way-finding signage to and along public access ways shall (1) harmonize with the historic character of the Town, (2) be located to avoid visual clutter, and (3) where located on the seaward side of Highway 1, Lansing Street, Heeler Drive, or Main Street, avoid intrusion to the maximum extent feasible into public views to and along the sea. Way-finding markers for the California Coastal Trail in the Town shall utilize the adopted Coastal Conservancy trail emblem (Figure 4.13-7); provided that the emblem may:

(1) Be part of a sign or structure,

(2) Be embedded in a sidewalk, path, trail, or in pavement, and

(3) Shall be displayed consistent with the requirements of the Town Local Coastal Program and Mendocino Historic Review Board Design Guidelines.

(J) Consideration should be given to cooperative interagency acquisition of the three (3) parcels in private ownership, seaward of Lansing Street and north of Heeser Drive, as an addition to Mendocino Headlands State Park, to completes public ownership of the entire shoreline band in the Town.

(K) A public pedestrian accessway and bicycle lane shall be improved in the Lansing Street right-of-way between the northerly Town boundary at Agate Beach and the intersection of Lansing and Main Streets, with marked and lighted (flashing embedded lights) cross walks at the intersections of Lansing Street with Main Street, Little Lake Street, St. Anthony's Church and Cemetery/Palette Drive, and Heeser Drive.

(L) The Main Street Enhancement Project, between Highway 1 and Heeser Drive, shall include historical sidewalks, ramps, stormwater management Best Management Practices, and street furniture to support sustainable coastal public access in the Town and to and along Mendocino Headlands State Park for all the people, consistent with public safety, the protection of public and private rights, and the protection of fragile coastal resources and the need to mitigate against the impacts of overcrowding or overuse of any single area.

(Ord. No. 4395, § 2, 11-17-2017)

(A) The public access required pursuant to Section 20.718.010 shall conform to the standards and requirements set forth in Sections 20.718.015 through 20.718.045.

(B) Lateral Public Access. A condition requiring an offer to dedicate an easement or a grant of easement for lateral shoreline access ways as a condition of approval of a coastal development permit (or other authorization to proceed with development) shall provide the public with the permanent right of lateral public access and recreational use along the entire width of the property and shall extend landward from the mean high tide line (shoreline), to the base (toe) of the coastal bluff, or to the first line of terrestrial vegetation, whichever is greater.

(C) Bluff Top Access. A condition to require public access along a bluff top as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 20.718.010 shall provide the public with the permanent right of scenic and visual access from the bluff top to the public tidelands.

Each bluff top accessway shall be described in the conditions of approval of the coastal development permit as an area beginning at the current bluff edge extending twenty-five (25) feet inland [or greater or lesser] as determined to be necessary for public safety or geologic stability. To the maximum extent feasible, the easement shall be as wide as necessary to accommodate the number of users that can reasonably be expected. Due to the potential for erosion of the bluff edge, the condition shall include a mechanism that will cause the accessway to be adjusted inland as the edge recedes. Any permanent improvements shall be set back from the accessway by a distance derived by multiplying the annual rate of bluff top retreat by the life expectancy in years of the improvements, plus an added geologic stability factor of one and one-half (1½).

The accessway shall be legally described as required in Section 20.718.040(A), with the furthest inland extent of the area referenced as a distance from a fixed monument in the following manner:

"Such easement shall be a minimum of twenty-five (25) feet wide located along the bluff top as measured inland from the daily bluff edge. As the daily bluff top edge may vary and move inland, the location of this right-of-way will change over time with the then current bluff edge."

(D) Vertical Access. A condition to require vertical public access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 20.718.010 shall provide the public with the permanent right of access, (1) located in specific locations identified in the certified Local Coastal Program for future vertical access, or (2) located in a site for which the permit issuing authority has reviewed an application for a development permit and has determined a vertical accessway is required pursuant to the access and recreation policies of the Coastal Act or the applicable provisions of the Mendocino Town Plan Local Coastal Program.

A condition to require vertical access as a condition of approval of a coastal development permit (or other authorization to proceed with development) pursuant to Section 20.718.010 shall provide the public with the permanent right of vertical access from the road to the shoreline (or bluff edge) and shall be legally described as required in Section 20.718.0040(A).

The access easement shall be a minimum of twenty-five (25) feet wide, with the following exceptions:

(1) Where the access way would have a significant adverse impact on an environmental sensitive habitat area;

(2) Where the access way would extend within twenty (20) feet of an existing residence;

(3) Where there are identified hazardous, topographic, or other physical constraints on the site that cannot otherwise be eliminated and require a narrower passageway;

(4) Where public safety conditions require a narrower passage-way.

(5) Along Highway 1, the pedestrian access way(s) shall be a minimum of fifteen (15) feet wide, wherever feasible, provided that the accessway(s) on the Big River Bridge shall be located on its west side and shall have a minimum width of six (6) feet.

(E) Pass and Repass. Public use of a public access easement may be limited to pass and repass:

(1) Where topographic constraints of the site make use dangerous;

(2) Where seasonal habitat values would be adversely affected;

(3) Where the access way may encroach closer than twenty (20) feet to and there is a need to protect the privacy of an existing residence.

(4) On walkways, adjacent to buildings, that extend between Little Lake and Capella Streets, Ukiah and Albion Streets, and Albion and Main Streets.

(F) Privacy. All access ways shall be located and designed to minimize the loss of privacy by adjacent real property owners or tenants, and to minimize other impacts on adjacent residences and residential lots (parcels).

(G) Posting. Once the responsibility for maintenance and liability for public walkways or pathways is accepted and management by the Main Street Enhancement Project (or another entity) is established, designated access ways may be posted by the managing agency, provided that way-finder or other historical posting shall be consistent with the Mendocino Historic Preservation Ordinance and with the provisions of Section 20.718.010. All access ways accessible to persons with disabilities shall be posted accordingly. All signs shall conform to the regulations and standards of Chapter 20.712 of this Division.

(H) Safety. All access ways shall be designed and constructed to safety standards adequate for their intended use. Barriers shall be constructed by the managing agency where necessary to protect public safety, taking into account the fundamental importance of unimpeded sidewalks, walkways, and paths for a functional public access system. Bluff retreat/erosion rates shall be evaluated as part of the accessway design to provide sufficient setback of lateral public access ways, parking, and other recreational upland support facilities for the life of the development.

(I) Access by Persons with Disabilities. Access to beach, Mendocino Estuary, and blufftop viewpoints shall be provided and signed for persons with disabilities where parking areas can be feasibly sited to facilitate wheelchair access. Suitable barriers shall be placed to mark wheelchair ramps and the limits to safe approach of a bluff edge.

(Ord. No. 4395, § 2, 11-17-2017)

New development projects shall provide public access from the nearest public roadway to the shoreline and along the coast consistent with the requirements of Section 20.718.010 except where findings required by Sections 20.718.045 and 20.718.050 establish any of the following:

(1) Public access is inconsistent with the public, safety, military, security needs, or protection of fragile coastal resources, or

(2) Adequate access exists nearby.

As used in Chapter 20.718, "new development" does not include:

(a) Structures destroyed by natural disaster: The replacement of any structure, other than a public works facility, destroyed by a disaster; provided that the replacement structure conforms to applicable existing zoning requirements, is for the same use as the destroyed structure, does not exceed either the floor area, height, or bulk of the destroyed structure by more than ten (10) percent, and is sited in the same location on the affected property as the destroyed structure. As used in this section, "disaster" means any situation in which the force or forces which destroyed the structure to be replaced were beyond the control of the owners.

(b) Demolition and reconstruction: The demolition and reconstruction of a singl-family residence or two-unit development provided that the reconstructed residence shall not exceed either the floor area, height or bulk of the former structure by more than ten (10) percent, and that the reconstructed residence shall be sited in the same location on the affected property as the former structure.

(c) Improvements: Improvements to any structure which do not change the intensity of its use, which do not increase either the floor area, height or bulk of the structure by more than ten (10) percent, which do not block or impede access, and which do not result in a seaward encroachment by the structure.

(d) Repair and maintenance: Repair or maintenance activity which, pursuant to Public Resources Code Section 30610, requires no permit unless the activity will have an adverse impact on lateral public access along the beach.

(e) Reconstruction and repair: The reconstruction or repair of any seawall; provided that the reconstructed or repaired seawall is not seaward of the location of the former structure. As used in this section, "reconstruction or repair" of a seawall shall not include replacement by a different type of structure or other modification in design or construction which results in different or greater impacts to shoreline resources than those of the existing structure.

(Ord. No. 4395, § 2, 11-17-2017)

(A) No public agency shall abandon, vacate, quitclaim, or approve a lot line adjustment or any other division of land that transfers the public access rights to use of any public access way, walkway, path, or easement therefor to private ownership.

(B) Any proposed permanent closure of a public access way, walkway, or public access easement shall require a coastal development permit and/or amendment of any existing coastal development permit that required establishment of the access way, walkway, or public access easement. If the subject accessway, walkway, or public access easement is in a location identified in Section 20.718.010 (Minimum Access Locations), an amendment to the certified Mendocino Town Local Coastal Program shall be effectively certified before an application for such development may be filed.

(Ord. No. 4395, § 2, 11-17-2017)

Provisions related to the existence of implied dedication arising from public use on a parcel within the Town are as follows:

(A) Existing Public Access Easement. No development shall be approved on a site which will conflict with any easement acquired by the public at large by court decree.

(B) Potential Existence of Implied Dedication Arising From Public Use

(1) Rights Not Yet Established. Where evidence of historical public use indicates the potential for the existence of implied dedication arising from public use, but rights have not been judicially determined, the Planning and Building Department staff shall apply research methods described in the publication by the Office of the Attorney Implied Dedication and Prescriptive Rights Manual Relating to California Coastal Commission Matters (1978).

(2) Potential Existence of Implied Dedication Arising From Public Use Established. Where research indicates the potential existence of implied dedication arising from public use, the County may:

(a) Proceed to litigate to secure the access right, or

(b) Refer the matter to the Office of the California Attorney General.

(C) Development in Area of Historic Public Use.

(1) Development may be sited on an area of historic public use only if:

(a) No development of the parcel would otherwise be possible; or

(b) Proposed development could not otherwise be sited in a manner which minimizes risks to life and property.

(2) When development must be sited on an area of historic public use, an equivalent easement providing access to the same area shall be provided on the site as a condition of permit approval.

(D) Minimum requirements. No access condition shall serve to extinguish or waive public prescriptive rights. In permits where evidence shows the possibility of implied dedication arising from public use, the following language shall be added to the access condition:

"Nothing in this condition shall be construed to constitute a waiver of any rights of public access which may exist on the parcel itself or on the designated easement."

(Ord. No. 4395, § 2, 11-17-2017)

Where public accessways are required for a project as designated on the coastal element land use maps or as a condition of a permit, an offer to dedicate an easement or a grant of easement, in the form and content approved by the Coastal Commission shall be recorded pursuant to Section 20.718.040 and in a manner approved by the Coastal Commission before the coastal permit is issued. Copy of the recorded document shall be submitted to the Department of Planning and Building Services prior to the issuance of the Coastal Development Permit.

(Ord. No. 4395, § 2, 11-17-2017)

(A) Prior to issuance of the coastal development permit, the landowner shall record in the official records of the County Recorder of Mendocino County an offer to dedicate an easement or grant as a condition of project approval, as follows:

(1) The offer or grant shall be free of prior liens except for tax liens and free of prior encumbrances which may affect the interest being conveyed.

(2) The offer or grant shall run with the land binding successors and assigns of the landowner and shall be irrevocable for a period of twenty-one (21) years beginning from the date of recording.

(3) The offer or grant shall convey to the people of the State of California an easement for access over and across the offerers' property.

(4) Each offer or grant of dedication shall provide that the title for each easement shall be automatically conveyed upon acceptance by a qualified agency as named by the Director after a management plan has been accepted.

(5) The recorded document shall provide that:

(a) The terms and conditions of the permit do not authorize any interference with any public access rights in the area subject to the easement prior to acceptance of the offer and,

(b) Development or obstruction in the accessway prior to acceptance of the offer is prohibited.

(B) Procedures for Access and Open Space Easements and Documents Restricting Use. The purpose of this subsection is to provide procedures pertaining to coastal development permits containing conditions for access, open space or conservation easements or the processing of other legal documents resulting from conditions of a coastal development permit which restricts use where such conditions are required by the Town Plan (Chapter 4.13 of the Coastal Element of the General Plan).

(1) Upon completion of final action on a coastal development permit requiring the applicant to record an offer to dedicate or grant an access, open space or conservation easement or other document restricting use, and prior to the issuance of the permit, the Coastal Permit Administrator shall forward a copy of the permit conditions and findings of approval and copies of the legal documents to the Executive Director of the Coastal Commission for review and approval of the legal adequacy and consistency with the requirements of potential accepting agencies;

(2) The Executive Director of the Coastal Commission shall have fifteen (15) working days from receipt of the documents where review is requested in which to complete the review and notify the applicant and Coastal Permit Administrator of recommended revisions if any;

(3) If the Coastal Permit Administrator does not receive notification of inadequacy of documents within the review or preparation period, the permit may be issued upon proof that the documents have been recorded free of prior liens and encumbrances, except tax liens, in accordance with the provisions of this Division;

(4) Where revisions are required to meet the standards of this section, the permit shall not be issued until the county has been notified that all issues of adequacy, uniformity and consistency have been resolved and the document has been recorded free of prior liens and encumbrances, except tax liens, in accordance with the provisions of the certified local coastal program;

(5) Copies of the recorded document(s), title report, and permit shall be forwarded to the Coastal Commission within ten (10) days after recordation of the document(s).

(6) Offers to dedicate or grants of easements of required public access shall be recorded prior to issuance of a Coastal Development Permit.

(C) Acceptance of Offer. Acceptance of the offer is affected by the recordation by the named grantee, in the official records of the County Recorder of Mendocino County, of a Resolution of Acceptance of the irrevocable offer:

(1) Any accessway which the managing agency or organization determines cannot be maintained or operated in a condition suitable for public use shall be offered to another public agency or qualified private association that agrees to open and maintain the accessway in a condition suitable for public use.

(2) A dedicated accessway shall not be required to be opened to public use until a public agency or private association approved in accordance with this section agrees to accept responsibility for maintenance and liability of the access, except in cases where immediate public access is implemented through a deed restriction.

(Ord. No. 4395, § 2, 11-17-2017)

No access way shall be opened for public use until an Access Way Management Plan has been prepared by the managing agency and accepted by the Director. If the plan proposes to newly authorize development, such portions of the plan shall require approval of a coastal development permit. At a minimum, the Plan shall:

(A) Provide for a design which avoids or mitigates any public safety hazards and any potentially significant adverse impacts on coastal resources;

(B) Set forth the agency(ies) responsible for operating, maintaining, and assuming liability for the access way;

(C) Set forth any other known provisions, such as facilities to be provided, signing, vegetation maintenance to ensure accessways remain safe and unobstructed, removal of trash/litter, and special design and monitoring requirements; and

(D) Set forth provisions for protecting the access way from vandalism and/or against unlawful use.

(Ord. No. 4395, § 2, 11-17-2017)