The purpose of this Chapter is to ensure that physical access is provided to coastal recreation areas for the general public without creating a public safety concern, overburdening the City's public improvements, degrading the City's natural resources, or causing substantial adverse impacts to adjacent private properties.

(Ord. No. 722)

Unless specifically defined below, words or phrases used in this Chapter shall be interpreted so as to give them the meaning they have in common usage and to give this Chapter its most reasonable application.

A.

Coastal Bluff Top Access shall mean access provided for use by the general public along a coastal bluff top for the purpose of coastal viewing.

B.

Lateral Public Access shall mean access provided for use by the general public along the water's edge of an ocean, lagoon, or river course.

C.

New Development shall mean the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any structure; the division of a parcel of land into two or more parcels; and/or any excavation or placement of fill for which a permit is required pursuant to the provisions of the Del Mar Municipal Code.

D.

Vertical Public Access shall mean access provided for use by the general public as a connection by which to travel from a public roadway, trail, or public use area to the water's edge of an ocean, lagoon, river course, or to an established lateral public access.

A.

Unless otherwise specified herein, an application for a Coastal Development Permit in the areas identified below shall be subject to the dedication of a public access easement(s) in the manner and form prescribed in this Chapter:

1.

New development on any parcel or location identified in the City of Del Mar Local Coastal Program Land Use Plan as containing an historically used or suitable informal public access pathway.

2.

New development on any site where there is substantial evidence of a public right of access to the sea or public tidelands which has been acquired through use or by legislative authorization.

3.

New development on any site where a trail, bluff top access, or other recreational access is necessary to mitigate the impact of the development on existing public access opportunities.

4.

New development in locations where it has been determined that a trail access is required to link recreational areas to each other or to the sea.

B.

Where the dedication of a public access easement(s) is required pursuant to the provisions of this Chapter, the required Coastal Development Permit shall also be conditioned for the provision of public access improvements within the easement area. Such improvements shall be designed and constructed in the manner prescribed by this Chapter.

C.

Public access improvements constructed or installed within access easements (e.g., walkways, paved paths, boardwalks, etc.) shall be no wider than deemed necessary to accommodate the numbers and types of users that can reasonably be expected. The width of facilities may vary for ramps or paved walkways depending on site factors. The determination of the minimum width necessary for such access improvements shall rest with the Director of Planning and Community Development using the standards contained within this Chapter.

A.

The requirement for the provision of public access easements or improvements thereto shall not apply where the review of the Coastal Development Permit required by this Title establishes the fact that the development for which the application has been filed will not adversely affect or reduce, either individually or cumulatively, the ability of the public to reach and use public tidelands, coastal bluffs, or coastal resources.

B.

The requirement for the provision of public access easements or improvements shall also not apply where:

1.

The project does not qualify as "new development" pursuant to the provisions of this Chapter.

2.

The review of the Coastal Development Permit required by this Title results in a written finding that:

a.

Public access would interfere with public safety or military security needs.

b.

Public access would be inconsistent with the protection of fragile coastal resources.

c.

Adequate opportunities for public access already exist at nearby facilities.

A.

Where required pursuant to the provisions of this Chapter, the alignment of a lateral public access easement and the improvements required therein, shall be designed to ensure that the access way, once implemented, will provide the public with the permanent right of lateral public access and passive recreational use along the shoreline or public tideland as applicable.

B.

Active recreational use within a lateral public access easement may be appropriate in cases where the proposed development is determined to be especially burdensome on existing opportunities for lateral public access. Examples of cases involving especially burdensome impacts on opportunities for lateral public access include:

1.

The proposed development severely impacts existing public recreational use of the shoreline.

2.

The proposed development is not a visitor-serving recreational facility.

3.

There is a history of active public use of the site.

4.

Active recreational uses would be consistent with the use of the proposed project.

5.

Such uses would not significantly interfere with the privacy of residential uses on or adjacent to the property.

C.

Lateral access easements shall be legally conveyed and described as enumerated in this Chapter.

A.

Minimum requirements. Where required pursuant to the provisions of this Chapter, the alignment of the vertical public access easement and the improvements required therein, shall be designed to ensure that the access way, once implemented, will provide the public with the permanent right of vertical public access to the water's edge (shoreline) of an ocean, lagoon, tidelands, river course, or to an established lateral public access, as applicable.

B.

A requirement to provide vertical access 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 vertical access which shall be limited to the public right of passive recreational use.

C.

Each vertical access way shall extend from the public road to the shoreline and shall be legally described as required in this Chapter.

D.

Unless constrained due to factors beyond the applicant's control, as determined by the Issuing Authority for the Coastal Development Permit, vertical access easements shall be a minimum of ten feet in width, with the access easement sited and aligned so as to provide a minimum of ten feet between the access way and the closest residence. Examples of factors which may be deemed "beyond the control of the applicant" shall include, but not be limited to, topographical constraints or the existence of a structure(s) which is non-conforming in regard to the property setbacks required by this Title.

E.

Vertical access easements shall be legally conveyed and described as enumerated in this Chapter.

(Ord. No. 733)

A.

Minimum requirements. Where required pursuant to the provisions of this Chapter, the alignment of a coastal bluff top public access easement and the improvements required therein shall be designed to ensure that the access way, once implemented, will provide the public with the permanent right of public access to and/or along the coastal bluff top.

B.

Coastal bluff top accesses shall be limited to passive coastal viewing purposes only.

C.

The design and alignment of required coastal bluff top access ways shall be as follows:

1.

Unless constrained due to factors beyond the applicant's control, as determined by the Issuing Authority for a Coastal Development Permit, access easements to and/or along a coastal bluff top shall be a minimum of ten feet in width, with the access easement sited and aligned so as to provide a minimum of ten feet between the access way and the closest residence. Examples of factors which may be deemed "beyond the control of the applicant" shall include, but not be limited to, topographical constraints or the existence of a structure(s) which is non-conforming in regard to the property setbacks required by this Title.

2.

Lateral Access easements shall extend landward in a parallel alignment along the coastal bluff top starting from a point five feet landward from the bluff top.

3.

The improvements within the required access shall include measures necessary to prevent uncontrolled access to the adjacent coastal bluff face.

D.

Coastal bluff top access easements shall be legally conveyed and described as enumerated in this Chapter.

The design of any public access easement or improvement required pursuant to the provisions of this Chapter shall include a consideration of the characteristics of the area in which the access would be located, including the existence of sensitive habitat or fragile topographic features. Consideration shall also be given to the protection of the privacy of adjacent residential uses. These factors may, in some cases, warrant a limitation on the time, place, and manner of the public access to be provided.

A.

New development shall be sited and designed in a manner that does not interfere with or diminish any public right of access which may have been established based on historic public use. When it is found that site constraints are so severe that siting of the access way in its historic location would significantly impair the proposed development, access may be provided in an alternative alignment and/or location on the development site. In such cases, the applicant shall provide, at a minimum, an equivalent area of public access or recreation to and along the same destination and accommodating 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 accordance with the provisions of this Chapter.

B.

The requirement for provision of an access easement or improvements therein shall not serve to extinguish or waive public prescriptive rights.

C.

Applications for Coastal Development Permits which involve sites where there is evidence of the existence of potential prescriptive rights shall be subject to conditions to ensure that the applicant acknowledges, in writing, that the approval of the permit or the conditions attached thereto shall not be construed to constitute a waiver of any prescriptive rights which may exist on the parcel itself or on the designated easement area.

A.

Access easements which are attached as conditions of approval pursuant to the provisions of this Chapter shall be described and recorded in a manner that provides the public, the property owner and the accepting agency the level of certainty as to the location of the access way and of the allowed uses therein.

B.

An easement, which is required pursuant to the provisions of this Chapter, shall be described as follows:

1.

For lateral access:

a.

Along the entire width of the property from the mean high tide line, or lagoon edge, to (as applicable) the toe of the bluff, the toe of the seawall, or other appropriate boundary.

2.

For bluff top access or trail access:

a.

Extending inland from the bluff edge or along the alignment of the access easement.

3.

For vertical access:

a.

Extending from the road to, as applicable, an intersecting lateral access, the shoreline or a coastal bluff top edge.

C.

Where required pursuant to the provisions of this Chapter, an access easement shall be provided in the form of a recorded irrevocable offer to dedicate the easement area to a public agency or private association as approved by the Director of Planning and Community Development.

D.

The recorded document shall provide that the offer to dedicate shall not be used or construed to allow anyone, prior to acceptance of the dedication, to interfere with any rights of public access acquired through past use, which may have existed on the property.

E.

The recorded document shall include legal descriptions, with metes and bounds as appropriate, of both the applicant's entire parcel and the easement area. The document shall also include a site plan, drawn to scale, showing the entire property and the easement area.

F.

The recorded document shall include a description of the type and character of the access as specified in the conditions of approval.

G.

Any access easement required pursuant to this Chapter shall be offered and recorded free of prior liens and any other encumbrances which would adversely affect the interest being conveyed. To ensure compliance with this requirement, the applicant shall furnish a title report for the affected property. If review of the required title report reveals an encumbrance which would adversely affect the interest being conveyed, the required easement shall be accompanied by a written, recorded subordination agreement prepared to the satisfaction of the Director of Planning and Community Development.

H.

Any offer to dedicate an access easement shall run with the land in favor of the City of Del Mar. The easement shall be binding on all successors and assignees, and shall be irrevocable for a period of 21 years, such period running from the date of recordation.

I.

Any offer to dedicate an access easement required pursuant to the provisions of this Chapter shall be subject to the review and written approval of the Coastal Commission's Executive Director or designee, Once recorded, a copy of the recorded Offer to Dedicate Public Access Easement shall be mailed to the closest regional office of the California Coastal Commission for filing with the Coastal Commission's Executive Director.

A.

Where determined appropriate in order to avoid and address potential conflicts between public access use and other uses on or immediately adjacent to the site, the requirement for provision and implementation of an Access Management Plan may be applied as a condition of approval of a Coastal Development Permit. Examples of "potential conflict" include: access in areas of sensitive habitats, agricultural resources, significant hazards, or adjoining residential neighborhoods, or military security areas.

B.

An Access Management Plan required pursuant to the provisions of this Chapter shall be subject to review and approval by the accepting agency and the Director of Planning and Community Development. The purpose of the review is to ensure consistency with the provisions and intent of the conditions requiring public access. Review and approval of a required Access Management Plan shall occur prior to the opening of the accessway.

C.

Where applicable, the Access Management Plan shall specify any approved management controls on the time and intensity of use or privacy buffers or requirements for maintenance of aesthetic values.

Unless otherwise specified, a dedicated access way shall not be required to be opened to public use until a public agency or private association, approved in accordance with this Chapter, agrees to accept responsibility for maintenance and liability of the access way.

A.

All applications for Coastal Development Permits (whether redevelopment or new development) meeting one or more of the circumstances cited below shall be subject to written findings of fact, analysis, and conclusions addressing the appropriateness of including or omitting requirements for the provision of public access easements and improvements:

1.

New development on any parcel or location identified in the City of Del Mar Local Coastal Program Land Use Plan as containing an historically used or suitable informal public access pathway.

2.

New development on any site where there is substantial evidence of a public right of access to the sea or public tidelands which has been acquired through use or a public right of access through legislative authorization.

3.

New development on any site where a trail, bluff top access, or other recreational access is necessary to mitigate the impact of the development on existing public access opportunities.

4.

New development in locations where it has been determined that a trail access is required to link recreational areas to each other or to the sea.

B.

The findings required herein shall address the applicable factors identified in this Chapter regarding the impact of the proposed development on existing public access opportunities and the type, alignment, and design of any public access required as a condition of approval. The findings required by this Section shall include, at a minimum:

1.

A statement of the individual and cumulative burdens which would be placed on public access opportunities by the proposed development based on applicable factors identified in this Chapter.

2.

An analysis based on the applicable factors identified in this Chapter of the necessity for requiring public access conditions to find the project consistent with the public access provisions of the Coastal Act.

3.

A description of the legitimate governmental interest furthered by any access condition required.

4.

An explanation of how the imposition of a condition to provide public access alleviates the burdens and impacts on public access, which would otherwise be created, were the development to be approved and implemented without public access requirements.