Planning Commission - Regular Meeting

Good morning. I'd like to call to order the Planning Commission meeting of August 20th, 2026. Secretary Luce, please take roll call.

Good morning. Commissioner Boydston?

Here.

Commissioner Kessley?

Here.

Commissioner Ayala? Here. Vice Chair Cushing? Here. Chair Sandlin?

Here. Please stand for the Pledge of Allegiance. I pledge allegiance to the flag The next item is public comments. Secretary Luce, did we receive any comments on the items not included in the agenda?

Chair Sandlin, we did not receive any public comments that's not related on the agenda today. Thank you.

Thank you, Luce. The next item is the approval of the minutes for August 6th. Do we have any discussion or motion to approve the minutes for August 6th, 2026?

I'll move to approve. Second.

Commissioner Kessley moves to approve and Commissioner Ayala has second. Do we have any discussion or actually, Secretary Luce, please take roll call.

Commissioner Boydston?

Yes.

Commissioner Kessley? Yes. Commissioner Ayala? Yes. Chair Cushing?

Here, yes.

Chair Sandlin?

Yes. THE NEXT ITEM IS ITEM 6A, RECEIVE AND FILE PRESENTATION AND PROVIDE INPUT REGARDING THE PUBLICATION OF ACCESSORY DWELLING UNIT ADU TOOLS AND RESOURCES INCLUDING AN ADU GUIDEBOOK, FREQUENTLY ASKED QUESTIONS AND HOMEOWNERS ADU CHECKLIST TO SUPPORT RESIDENTS, DEVELOPERS AND DESIGNERS IN DEVELOPING ADUS AND JUNIOR ADUS PURSUIT INTO HOUSING ELEMENT PROGRAM HE-C. PLANNING MANAGER, PLEASE PROCEED WITH YOUR PRESENTATION. HOPEFULLY I SAID THAT RIGHT.

Good morning, Chair Sandlin, planning commissioners, and anyone listening online and members of the public. My name is Ruchita Kadakia. I'm the planning manager for the housing and state mandate section in the county's planning division, and here to present the tools and resources that we've developed for accessory dwelling units and junior accessory dwelling units for units in the county. And you will hear me reference these as ADUs and JADUs throughout the presentation. This project was initiated to implement a housing element program, HEC, that we have, which was really to assist county residents, developers, and any applicants that may want to develop such units in the county. IN DECEMBER OF 2025, THE PLANNING DIVISION RECEIVED GRANT FUNDING THROUGH THE VENTURA COUNCIL OF GOVERNMENTS WHO DISBURSED FUNDING THROUGH STATE REAP FUNDS. THAT'S THE REGIONAL EARLY ACTION PROGRAM, THE SECOND ROUND OF IT. AND WE WERE ABLE TO SELECT A CONSULTANT, OPTICOS DESIGN, TO DEVELOP THREE RESOURCES THAT YOU SEE THAT I WILL BE ELABORATING DURING THIS PRESENTATION. AN ADU GUIDEBOOK. a frequently asked questions document, as well as a homeowner's ADU checklist. Each of these resources were developed both in English and Spanish, and I'm going to elaborate a little more about each of these today. Before I launch into my presentation, though, I wanted to specifically acknowledge the assistance that we received from planning technician Jenna Nguyen, as well as staff from the county's building and safety division, both of who were really imperative in making sure that the information was accurate, that it was developed cohesively and made sense and was easy to read for a reader. To give a little bit of a context, the county's 2021 through 2029 six cycle housing element relies quite heavily on ADUs and JADUs for development of our regional housing need or RHNA. As you can see on the slide, about 560 units out of our 1,262 total is reliant for these, which is about 44% of our overall RHNA. and the ADUs consist of almost half of all lower income units in our regional housing need. This really emphasizes how important it is for us to make sure that these units are developed. The good news is in the last four years, we are currently at the mid cycle point. And in the last four years, the county has been successful in developing 447 of those 560 units consisting of about 80% of all of our overall target. This really shows the county's support in developing these units. And you've also seen this through the ordinances that were adopted recently at the board in the last few years. The ADU law and the requirements are quite complex and they change quite often and they provide a myriad of different options to the residents depending on site specifics. So we have noticed that it's really one of the biggest questions that we receive at the planning counter as to what can you develop on your property and these are great infill options for the residents. The program HEC specifically required the county to develop the tools and resources for ADUs which provide clear user-friendly guidance simplifying these requirements and in turn result in reduced individual inquiries at the planning counter and improve efficiency as well as customer service. And this would really help with making sure that the staff workload related to ADUs is slightly balanced and we would be able to assist with all of the customers easily. While developing these resources, the source materials that we used were some of the recently adopted ADU ordinances for the non-coastal as well as the coastal zoning ordinance. Just for the record, the coastal zoning ordinance is currently under the Department of Housing and Community Development, that's HCD, and Coastal Commission Review. So it will be certified at some point in the future. Other resources used were state ADU resources. They have a guidebook. They have several resources on the website, as well as the law. So we made sure that all of this was utilized. And I wanted to make a very important note and clarification. These tools are not intended to be used in place of the adopted regulations. These are just a helpful tool to try and help them navigate to the remainder. The guidebook and all of the resources will indicate that they must go to the actual regulation. So starting off with the ADU guidebook, this is in your exhibit one. It was developed both in English and Spanish and is really intended to be the first stop for the homeowners to come to and really understand what an ADU is, what the rules are, how they could navigate the permitting process, what resources they can use. It really provides an overview. So I'm just going to go through each of the four parts really quickly. The first one is an overview. It really is explaining what the subject matter is, explains what an ADU is, provides the information on all the types of ADUs that are available, which includes a detached, attached ADU, converting existing space of the residence, or converting existing space in an accessory structure, or a junior ADU, which is a very specific type of ADU as well. This section of the guidebook also helps a reader compare the relationship of each type of ADU to different components on whether it be the cost that they may need to create or what it would be the impact and cost on how much space in the primary residence that might be utilized. by developing this option, yard space that might be necessary, parking, privacy, et cetera. So this section really helps them navigate what is the benefit of one type of ADU for their site-specific space and how they can use it or which one is it that they're leaning towards. So this is just an overview. The next section is about education. It really provides more information about what the ADU standards are in the county at this point. It provides a summary of each of the housing type, ADU type. It provides an explanation of what can I do on a property that has a single family dwelling versus a multifamily structure. So it provides the combination of ADUs that can be developed on that lot. it has a decision tree or a flow chart that really this is one of the big questions we get when do we need planning approval specifically versus when is it that state law allows us to go chart which explains that and when the planning permit approval specifically is necessary, like a zoning clearance or a coastal development permit. And finally, it also explains that there are other regulations that may apply depending on where the property is located, like coastal requirements, habitat connectivity, ESHA, scenic resource protection, et cetera. The third one is really the main and the most helpful tool. It is really like after they've learned about the basic requirements, they're like, OK, I think I know which kind of ADU I want to develop. Let me figure out how I can walk through all of the steps necessary for me to get from designing an ADU to moving into an ADU. So it has four specific stages, like what's the design component, what are the steps you need to take one by one to get to that point, through that point, reviewing and permitting of the ADU itself, what do I need to get together for my permitting packet, construction, what is it that I need for that component, as well as final moving in or certificate of occupancy. It also provides additional helpful throughout each of the steps. It provides links and resources that can assist the reader or the customer to assist with, say, free standardized plans that they could utilize that the county has developed already. Citizens access and a link to it. This is where you go and you can apply for your permit. Early plan review agreements or utility connections. These are things that we've heard so much at the counter, so we wanted to make sure that we would provide clear input about it. There's also an ADU cost calculator. That is a link which was really included, and it was developed with all of the 10 cities as well as the county of Ventura in 2022 using the REAP funds through the Ventura Council of Governments in the past. This calculator is not representative of actual costs for permitting or constructing the unit, but it provides some form of preliminary idea of whether, depending on the type of construction and the type of unit that they want to develop, what it may be representative of. So it gives them a starting point for it. And the final section is really about resources that one can do. So there is a brainstorming checklist. This is my site. What is the setback that I'm, so they can have like a list of like, oh, you write down your setback here. This is the size of my lot. making them go through step by step, so to have a little bit of a cheat sheet of sorts. And then they have information on the county's resources, such as the standardized plans that I mentioned before, the one, two, and three bedroom detached units that we have pre-approved plans through the building and safety division. And they also have design tips. How do I draw a site plan? So many customers come to the counter not knowing any of these. So this is really helping them understand how they can develop. And finally, we end off with some definitions that we've used, resources to what kind of fees or the county agency contacts, and other educational and financial resources. So this is the big document that we're hoping that will be really helpful for everyone to read. But we understand that not all questions are answered through the guidebook, and they may still have additional questions, which is why we created a list of frequently asked questions that we receive at the counter. And this includes a document which we Anticipate will address some of the early inquiries that they have after they read the guidebook. And this is a document that's also easier to revise with changing regulations. The guidebook is anticipated to be more high level and try not to change it too much over time, whereas the frequently asked questions are something that can go into the detail of certain specifics of questions and can be revised or expanded depending on the kind of questions we get. This document is also going to be available in English and Spanish on the county's website. And finally, we developed an ADU checklist that could be utilized by the homeowner along with the ADU guidebook. This would really be intended for the homeowner to use, not for them to say, what do I need from each agency? It gives them an idea of the roles roles served by each of the agencies and through the permitting process and then gives them an idea of like who they can contact who the what the contact information is and they can check it off and we're hoping that this checklist is also helpful along as they navigate through the guidebook and the frequently asked questions also available in english and spanish And with that, this really brings me to the recommended actions that we have in front of you to receive and file this presentation so we can publish these three resources on our website and to provide any input that you may have on these. And I'll keep the slide up for anyone who may be on Zoom or online who may want to make comments.

Thank you, Retrita. Appreciate the great presentation you had. Do we have any questions of staff by the commission?

I did have one question.

Question from Commissioner Boyson and Commissioner Ayala. Go ahead.

Thank you. So thank you for providing resources on cost. I think that's kind of one of the biggest hurdles for homeowners to really start developing these ADUs and JADUs. Just wondering if there's any connectivity because I know there's a lot of really great work happening on like the Ventura County Sustainability Division around energy efficiency and kind of building more energy efficiencies in homes. So kind of to add on to SORT OF A SUGGESTION FOR HOMEOWNERS TO ALSO IMPROVE THEIR ENERGY EFFICIENCY IN THEIR HOMES, ESPECIALLY IF THEY'RE GOING TO BE RENTING OUT THESE ADUs AND JADUs. I'M WONDERING IF THERE'S ANY CURRENT CONNECTIVITY WITH PROGRAMS THROUGH THE 3C REN THAT THE COUNTY CURRENTLY OFFERS.

That's a great question. I don't think we have a direct reference to 3C REN or any of those resources available through them. As I mentioned, there is some information on solar panels and that kind of work, but we could take a note of that and see if we can add in at least the link to the sustainability division and resources for energy efficiency. Absolutely. Thank you.

Yes, I just wanted to commend you. the whole documentation and the steps that are put out there is truly worthwhile. Me as an architect and going through it and it's probably the clearest document I've read on how this all works. And I want to commend you and your staff and everyone that worked on it in putting together a document that truly I think transcends what's out there in the world.

Thank you. As I mentioned, our staff really helped in making sure that this was accurate, and we had a great consultant as well. Yes, thank you.

Any other questions of staff on the commission?

I JUST WANT TO ALSO COMMEND YOU GUYS FOR WHAT A GREAT JOB THAT WAS. I MEAN, YOU'RE TAKING LIKE THIS WHOLE CONCEPT THAT WAS KIND OF LIKE, YEAH, GO DO AN ADU. WHERE DO I START? I WENT THROUGH THE WHOLE THING AND IT WAS REALLY HELPFUL. THANK YOU VERY MUCH.

THANK YOU.

GREAT JOB. I WILL NOW OPEN THE HEARING FOR PUBLIC COMMENTS. IS THERE ANY PUBLIC COMMENTS?

Chair Sandlin, we did not receive any public comments or requests to speak for this particular item. Thank you.

Would staff like to make any closing remarks?

No, I'm good. Thank you so much.

Thank you so much.

All right. I will now close the public comments, and we will now proceed with the next item, 6B. Receive and file a report on the analysis of the Ventura County's local coastal program provisions for protecting constitutional property rights. The project location is all coastal zones of unincorporated areas of Ventura County. Planner Abigail Convery, please proceed with your presentation.

GOOD MORNING, CHAIR SANDLIN, COMMISSIONERS, MEMBERS OF THE PUBLIC. MY NAME IS ABIGAIL CONVERY. I'M A SENIOR PLANNER WITH THE PLANNING DIVISION AND I'M THE SIGNED CASE PLANNER TO THIS ITEM TODAY, 6B. As Richita also did in her slide, for those on Zoom who wish to have a public, put a public comment in, go ahead and raise your hand button and then you'll be connected at the appropriate time. Also, if you're participating by phone, go ahead and press star 9 to be cued. so i wanted to start off with a little bit of background information at the february 19th planning commission meeting earlier this year a public commenter had requested that the county take a closer look at the economically beneficial use policies and the ESHA or environmentally sensitive habitat areas or ESHA when someone comes in for development in our local coastal program. So concern was expressed about how the LCP limits additional development, even when it would meet the same requirements, building site requirements of new development in ESHA, which would be a 10,000 square foot building site on undeveloped parcels. So the idea being that the county's economic beneficial use or EBU policies automatically treat existing development as already economic beneficial use and thereby violating private property rights associated with reasonable economic expectations. At that time, your commission requested that the planning director conduct a review of the county's LCP, ESHA and EBU provisions in context of private property rights law and determine if action is warranted. I'm here today to provide the results of planning staff and county council findings on how the LCP addresses the Coastal Act requirements and private property rights law. So you'll find more detail in the attached planning staff report with the memo for your reference. So the key findings. The LCP must balance constitutional property rights in addition to Coastal Act provisions which protect ESHA. The LCP does this through a legally grounded process outlined in the Coastal Zoning Ordinance, or the CZO. In the coastal zone, any expansion of existing development is treated as new development per the definition of development in the Coastal Act. So in the case of existing development, who is proposing to expand their footprint, which would actually impact ESHA, the EBU process that's outlined within the CZO allows that applicant to submit legal and economic evidence showing that that additional development is necessary to achieve economic beneficial use. This analysis would evaluate all components of private property rights, um, including reasonable backed expectations. Each of these requests are handled on a case by case basis. And this EBU process is necessary for the county to legally grant that extension extension into Esha per the coastal act. Okay, on this slide, you'll see examples of the type of information that may be requested from an applicant per the EBU process. This information can vary. The planning director in consultation with county council may adjust these CZO requirements based on the type of proposed development and the project location. The LCP is legally grounded and was certified by the state in 2022, confirming that it meets Coastal Act requirements for protecting both constitutional property rights and ESHA. Because of this, the LCP policies do not need to be reinterpreted or amended beyond their existing language because they are compliant with relevant case law and the Coastal Act. AT THIS TIME, I WANT TO HAND THE PRESENTATION OVER TO CHIEF ASSISTANT COUNTY COUNSEL JEFF BARNES WHO WILL DISCUSS MORE DETAILS ON THE NUANCES WITH ESHA AND THE CONSTITUTIONAL PROPERTY RIGHTS. THANK YOU.

GREAT. THANKS, ABBY. CHAIR SANDLIN, MEMBERS OF THE COMMISSION, JEFF BARNES. Get the sense this issue is causing confusion I know it's it's so I'm gonna do my best to kind of break down the constitutional Principles at play as clearly as possible Because terms like reasonable get thrown around a lot and so it seems like the constitutional standards are low and so there's a lot of wiggle room here and the county is being too strict in terms of the commenter's position and so I'm going to do my best to explain why that's not the case and how everything fits into the constitutional context and how actually this issue is is very relevant to the the county's zoning and land use rules in general in general and how if the county were to go down the path that's urged by the commenter, it would actually undermine our entire zoning and land use legal apparatus. So it's actually a big issue. And so I love the law, love constitutional law. So I'm going to do my best to break it down. Feel free to ask questions when you're done or when I'm done. So the basic situation here that the commenter has commented on is that when a property is developed with a residence the commenter wants the property owner to be able to expand the residents or engage in other residential development that would remove additional ESHA from the lot. And so the commenter says it's not fair that if someone buys a lot in the Santa Monica Mountains, because that's basically what we're talking about here, has coastal sage shrub, which is ESHA, it's not fair that the person who bought that lot is able to develop up to, it's not an automatic allowance, but up to 10,000 square feet. Whereas if someone owns a property with an existing dwelling, they can't take out 2,000 more square feet of ESHA to get to the same 10,000 square foot limit. And I get it like at a certain level that that doesn't seem fair. But what we're dealing with here is the constitutional principle. It's the law, it's not policy. And so that's what I think is important to understand. So when The economically beneficial use, I'm the one who helped with the ESHA update. I'm the one who used that term. The most typical situation where we are presented with a potential takings issue, like I said, is when someone buys a vacant lot and they want to develop a residence in the Santa Monica Mountains. The default rule under the Coastal Act is you cannot do residential development that takes out ESHA because it's not a It's not the type of use that allows that. It's very limited circumstances you could take out ESHA. At the same time, there's a constitutional Supreme Court case called Lucas versus South Carolina Coastal Council. That was a situation where in South Carolina a property owner bought a lot on a beach due to the state's environmental Regulations the property owner was not allowed to build a residence the state basically said okay well congratulations You can put lawn chairs out and enjoy the sunset and so the Supreme Court said no You basically need to allow them to build a house. That's economically beneficial use And so it sounds like a fuzzy term, but it's actually a super high standard. The standard is basically if you buy a lot and the state doesn't allow you to do anything to give you any real economic value, basically almost all of the value of the property is diminished. You basically almost have nothing. So super high standard, that's not allowed. That's considered a taking of private property under the law. So again, extremely high standard. OK, but once a dwelling is developed on a parcel, whether South Carolina or the Santa Monica Mountains, then we get into a different constitutional position because the property already is developed in a way that I don't know the exact percentage. 99 point whatever percent of the time, I would say the property owner has an economically beneficial use. They already have a house there. And so we're going to get out of that test then. So it's like, OK, if someone owns a house and they want to take out more ESHA, to do an expansion or other residential development, then you get into a different test. It's called the Penn Central test and it's called the Regulatory Takings Test. And so that's where you see terms like reasonable investment backed expectations. That is one prong of the test. Before you get to that prong, though, the first prong is economic impact of the regulation and again the economic impact is a super high bar it basically get you have to have the same type of diminution of value that the property owner in the Lucas case was facing basically almost all of your property values wiped out by this regulation and so super high bar so if you get past that test and the next QUITE IN IT WELL AGAIN IT WOULD RARELY APPLY IN MY OPINION IN THE SAN MONICA MOUNTAINS I'VE NEVER SEEN I'VE NEVER HEARD ABOUT A DEVELOPMENT SCENARIO WHERE THAT WAS THE CASE SO AS ABBY MENTIONED WE HAVE A PROCESS IF SOMEONE WANTS TO MAKE THAT ASSERTION THEN THAT YOU KNOW WE'RE ALL EARS AND WE HAVE A PROCESS FOR THAT AND SO THAT'S THAT'S ABBY'S POINT BUT AGAIN SUPER HIGH STANDARD UM And so then, yeah, so then we get to investment backed expectations. I would argue there it would be difficult for a property owner to even meet that standard or element because here, you know, like I said, under the Coastal Act, ESHA has been protected from residential development for many, many years. And so when someone buys a property, let's say with the existing dwelling, they should already know you're not going to be able to take out more ESHA to do an expansion. That's just like the law. So if you did any due diligence, you should know you're not going to be allowed to develop up to 10,000 square feet or anything else. And that's just what you're buying. Again, if someone disagrees, we're all ears. We would look at their arguments in that regard. And so here I believe what the commenter wants the county to do is to adopt some kind of standard where if a property owner says their reasonable investment-backed expectations are that they should, they paid a lot of money for a property, and I get it. They want to push out the footprint from 2,000 to 10,000 square feet. I get it. Like I said, as a policy reason, it seems reasonable, right? They paid a lot of money for the lot, et cetera. But again, that's what we're dealing with is a constitutional standard, which is completely different. And the standard is much, much higher. um and so it would be a very high bar to to meet and i would strongly recommend recommend against the county going down that path adopting that kind of standard and so then tying it back to our land use rules more generally um your commission recently heard and this is just one example uh the case the 85 crestview commercial event venue um situation and i thought it was interesting and i just actually just thought of this on my way in this morning the legal counsel for that property owner made the exact same argument before the board of supervisors hey my client bought this really nice property his reasonable investment back expectations are he should be able to run it as a commercial event venue even though that's not allowed under the county's zoning rules you have to let him do this otherwise you're violating his constitutional property rights and so i know here the commenter would say oh it's different you already have this rule um and and it would be limited to esha but if we go down that path of the county taking the position that that type of low standard and kind of subjective on what the what the property owner thinks they should be able to do with their property. If we get on that path and like I said, it will literally undermine our entire zoning and land use apparatus. And I don't say that lightly because I mean, I see the same as a land use lawyer for 20 years. I've seen the same argument being made in different contexts. And so we have to be super careful before we start going down that path. Um, The other argument or the other assertion the commenter makes is, oh, you're violating equal protection principles because, again, it's not fair if someone buys a vacant lot that they could develop up to 10,000 square feet, whereas if you have an existing lot, you can't push out your building envelope to take out ESHA to do the same thing. That's not fair. It violates equal protection. No, it doesn't, I would say, because the same standard applies in both situations the standard is does the county have to legally allow the development to avoid a constitutional taking of property rights and like i said when you look at the constitutional case law and the rules we almost always would not have to allow it because the constitution treats vacant lots differently than lots that already developed under the economically beneficial use analysis um and so we are treating them the same and it it just bear work it's worth repeating that the 10 000 it's not an automatic allowance it's it's a high end and so if someone has Two or three thousand square feet of building envelope with an existing dwelling then they already like I said They almost always will already have an economically beneficial use They're not entitled to go up to ten thousand So I hope that Made sense. I'm I'm sure you have questions. I'm I'm happy to answer any questions that you have I

Yeah, and I'll just say our recommended actions are to receive and file the attached briefing memo and exhibits. Our presentation is done.

Great, thank you. Does the Commission have any questions for staff? I have a few. Would the constitutional property rights supersede state law and state environmental laws?

THAT'S A GREAT QUESTION AND I SHOULD EXPLAIN THAT A LITTLE BIT MORE. THEY WOULD AND SO THAT'S WHY IN THE COASTAL ACT ITSELF IT RECOGNIZES THAT IF IMPLEMENTATION OF THE COASTAL ACT INCLUDING THE ESHA PROTECTION RULES WOULD VIOLATE THE CONSTITUTION AND THE CONSTITUTION WINS BASICALLY. AND SO THAT'S THE WHOLE REASON WHY WE WORKED IN THIS ECONOMICALLY BENEFICIAL USE into our LCP to basically have a kind of more organized process for looking at those constitutional issues.

And that's a good question leading to the next question is if the Constitution supersedes the environmental law and the state law and somebody buys a property based upon constitutional rights, would they still be affected by state law and the limits of the state law versus the Constitution?

No, they wouldn't be, but first they would have to establish under those constitutional laws that they had a right to engage in a level of development that they want to engage in. And so they need to make that showing. And so that's the reason why we have the, we request information and materials that are in the CZO.

And that comes down to like the reasonable investment back expectations, right? They would have to. basically say I bought this property. Yeah, it's in ESHA. Yeah, it's state environmental. But I have, I'm an American and I have United States constitutional rights to be able to develop my property. And my reasonable backed, or investment backed expectation is that I can develop this property. So state law and environmental law would then, IT WOULDN'T MAKE SENSE THAT THEY WOULD STILL, HE BOUGHT IT FOR LET'S SAY A MILLION DOLLARS AND HIS REASONABLE EXPECTATION IS TO MAKE TWO MILLION DOLLARS ON THE PROPERTY. AND TO DO THAT HE HAS TO DEVELOP THIS PROPERTY ON WHERE THERE'S ESHA AND WHERE THERE'S STATE LAW OR SOMETHING LIKE THAT THAT WOULD PREVENT HIM. DOES THAT, WOULD THE CONSTITUTIONAL STILL SUPERCEDE THAT?

No, that's I guess I would say that's not an accurate rendition of how it works. But like I said, if you're buying under the Constitution, so you have to look again at what constitutional principles, what are the tests. If you're buying a lot in the Santa Monica Mountains, there's no development. The presumption is that you're entitled to develop it with a dwelling unit. And so in order to provide the economically beneficial use under the Lucas test, I said, or I described earlier, if the county didn't allow that, then it would be subject to a total takings. That's what they call a total diminution of value takings claim. But then if In your scenario, Chair Sandlin, so I'm not sure what scenario you're talking about. So that's one. But two, what the commenter is talking about here is if there's a lot that's already developed with the dwelling, even if someone bought it for $10 million and in their mind they should be able to sell it for $20 million after they doubled the footprint up to 10,000 square feet, The test there is before you get to reasonable investment backed expectations, you look at the economic impact of the regulation. And as I explained before, that's a super high bar. And so the value of the property has to be diminished by, the courts have said, like over 90%. And so it's almost a total wipeout. And so it's a super high bar. The same with the Lucas, but just in a different context. And so you have to show that the ETSHA rule takes a gigantic hit on your property value even before you get to reasonable backed expectations. So I guess what I want to stress, like I said before, is that it's not a subjective, it's not a situation where the property owner subjectively walks in and says, oh, OK, I bought it for 10. I expect to sell it for 20. I have a constitutional property right. You have to let me take this out. That's not how it works. And if it worked like that, like I said, then we're back into the Crestview situation. Mr. Tinsley says, oh, I bought it. I bought it for five with the expectation that I'm going to make 100 grand a month as a commercial event venue. You can't tell me I can't because that's my subjective intent. That type of path would undermine our whole zoning system because, again, constitutional law trumps, but It's limited, and it's a super high bar. And so that's why we have to be very careful about allowing things based on a theory that, oh, well, we have to because it's the Constitution. Again, there's a legal principle, then there's a policy principle. And like I keep saying, what we're talking about here is a legal principle. And so even if you think the actual policy is not fair, that's a completely different legal situation than calling it a taking because that puts the county at risk and that puts our whole zoning system at risk.

And in which way does the Constitution treat vacant lot versus non-vacant lots?

Yeah, I just as I just explained it's the vacant lot scenario. It's it's the the Lucas the Lucas test it's the Complete economic loss. It's called the per se taking it's also known as and so that's where That's basically how we drafted the economically beneficial use. That's the term that's used in Lucas and so That's Property owners there would have a better argument for being able to take out ESHA to build a dwelling as opposed to someone who already has a dwelling for the reasons I said.

And under the reasonable investment back expectations, Could it be that the state law or local law of 10,000 square feet is, could 10,000 square feet, what if they needed to build a 15 or 20,000 square feet to make that reasonable investment-backed expectation? Would that be a reasonable investment-backed expectation?

You know what, another thing I should have said is theoretically maybe, but again before you get to the reasonable investment backed expectation, you have to look at the economic impact. And so if you already have a dwelling, a property developed with a dwelling unit, then it's going to be a very high bar to make. If there's not a dwelling unit, then maybe, and this is, I should have said this before. It's highly fact specific. It's case by case. And so that, Chair Sandlin, that's possible. You could have that type of scenario arise. But kind of working off of everything I've said, there would be a lot better argument if it was a vacant lot as opposed to a lot that was already developed.

Sounds good. So potentially somebody could develop a 20,000 square foot home even though the regulation says 10 because they have a reasonable investment expectation. That's in theory.

In theory, exactly, yeah.

Great. No further questions from me. Is there any other questions from Commissioner Boyson?

Just had a question on developable. You buy a lot that's developed, has a 5,000 square foot house on it. What happens when you, if you decide, well, I'm going to tear down the house? Now the lot is not developed. And I want to start, do you start from zero then?

No, you wouldn't.

So you'd still be limited to the original amount of 5,000?

Yeah, you would be, yeah.

Okay. THAT'S A GREAT QUESTION, COMMISSIONER BOYSTON. IN THE CASE OF THE MALIBU FIRES, LET'S SAY THE HOUSE BURNED DOWN AND THEY HAVE TO SELL THEIR PROPERTY. A LOT OF PROPERTIES IN MALIBU HAD BURNED DOWN AND PEOPLE HAVE TO BUY THOSE PROPERTIES AND GO THROUGH THE PROCESS OF THE PERMITTING AND PLANNING AND REDEVELOPING THOSE PROPERTIES. SO LET'S SAY THAT'S THE WAY IT GOT TORN DOWN. That new investor that comes to buy that property that has that Reasonable investment-backed Expectation is that yeah that 700 square foot house burnt down, but it's a great lot It's great property this potential for this property is a 20,000 square foot home And that's my reasonable investment back expectations of making my investment at that point you're saying it would still be treated differently because there was a 700-square-foot approved dwelling there at one time.

Yeah, and Abby, correct me if I'm wrong, but I believe our ESHA rules address this exact scenario where when we're looking at ESHA impacts from development after a fire, you're looking at the baseline of what was permitted before as opposed to a blank slate. And so that that's in our code now, so I guess my first thought in that scenario as well That wouldn't be a reasonable back expectations because the county's rules don't don't allow you to Start from scratch you have to start from the baseline in terms of the prior Developments footprint and impacts on Esha Because one of the things that these homeowners are facing I think in Malibu is is that

yet they got to rebuild but now they rebuild cost is significantly higher to build anything today uh the piles or whatever the engineering requires now to build it so uh it wouldn't make sense to rebuild a 700 square foot home in case of all the different rules and regulations the changes in ordinances that require certain engineering or certain designs to be done so the only way to really make a reasonable investment back expectation is to build that 20 000 square foot home in that case how does the county look at that you know um i

Every situation is different. I completely understand where you're coming from. And I could see a property owner asserting that. But I don't want to get into hypotheticals. And I said what our rule is. And as Abby explained, we have a process. If someone wants to make that kind of assertion, we would look carefully at that situation by gathering all the information and materials that are in the LCP and then we would take it from there.

So I also wanted to comment too that under those situations for example what happened in Malibu you know the governor came out with a proclamation and so I'm not personally like familiar with the details but I do know those situations are you know, treated differently as they occur. So is that correct?

I don't I don't know if if the short answer is I don't know. I don't know if if there's a governor's order that allowed, you know, more to basically be removed.

Yeah. And neither am I. But I just threw that out.

I believe the governor's order was about process and not having to go back through a full coastal development permit and was just lowering the level of permitting process more towards a ministerial action to try to move the rebuilding forward. I will note, as far as the regulations, that scenario that Commissioner, Chair Sandlin is talking about, we'd be working with the applicant. Well, what else are you trying to do? How are you orienting your new house in the rebuild? We've done that already through mountain fire back with Thomas. Adjustments were made and we were able to accommodate, in most cases, slight adjustments. for the esha scenario would be how are you doing your rebuild are you adding another 1200 square feet and it can arrange in a way that really isn't impacting a show or isn't addressing fuel management requirements that could affect esha so we have a whole process that was adopted per the esha regulations into our fee schedule that allows for early coordination with planning staff to walk through the esha regulations and really work with an applicant So I agree it is case by case. That's the most important aspect of all this. We have the framework built in our ordinance. We have the steps and procedures. We have the list that Abigail showed on the slide. All of those components basically are the recipe card. Those are all the pieces of which would need to be part of the process. the main ingredient being the proposal. So we haven't had the proposal before us to say, okay, now fit the proposal into those components of the recipe and see what we get at the end of the day. I'd also highlight that there is a master chef. The master chef in all of this is the Coastal Commission and the Coastal Act. So there are aspects of what the commenter has described that really go back to the fundamental components of the Coastal Act, not just our certified local coastal program. I have offered to Schmitz and Associates representatives when they first brought this to my attention. They would meet with the Coastal Commission staff, if you like, because this is really a statewide issue and that offer still stands. And that may be something that your commission wants to encourage the commenter to pursue. And I'm happy to help arrange that. Thank you.

Sounds great. Any other questions of the commission of the staff? Seeing none, I will now open for public comment. Secretary Luce, do we have any public comments or speakers for this item?

Chair Sandlin, yes, we do. We have one public speaker for this particular item. His name is Don Smith. Don, you have three minutes.

Good morning, Commissioners. My name is Don Schmitz. I am the aforementioned commenter. This is obviously an extremely complicated matter when you're discussing constitutional issues, law and precedent. So, Chair, I would beg your indulgence. Could I have 15 minutes to cover all of this?

Sure. Sounds good.

So a couple points before I start my PowerPoint presentation. I'm a little deflated over the presentation by County Council, Mr. Barnes. I actually was very much prepared to, and still do, want to congratulate your professional staff and the County Council's office as it pertains to the staff report and the memo which was prepared for this hearing today. But a couple points of clarification. Equating this to a commercial property owner claiming a constitutional right for economic backed expectations for use on a piece of property that is not permissible under the code has absolutely nothing to do with the topic that is before us today. What we are talking about is residential development of properties which are zoned as residential. Mr. Barnes said he was not aware of any precedent in regards to this constitutional taking issue in the Santa Monica Mountains. And it's absolutely correct. What we're talking about here is the Santa Monica Mountains. I would draw your attention to the 1994 Heeling case, which was against the California Coastal Commission, whereupon the Coastal Commission denied Mr. Heeling any use of his property whatsoever. That's the clear, bright line in Lucas. And the Coastal Commission lost and the government ended up buying that property I would also point out that the Lucas case is from 1992 and what I'm going to talk about a little bit in my presentation is subsequent SCOTUS Supreme Court of the United States cases which go beyond the Lucas case. And so with that, if I could go ahead and if I could start my PowerPoint presentation. Oh, and another couple quick points of clarification. The governor's executive orders, which I'm very familiar with, and I was involved with the crafting of those, do not apply to Ventura County. They didn't apply to the Woolsey Fire. They applied to the Palisades Fire, which is a bit unjust. But what that did, It completely set aside the Coastal Act and the California Environmental Quality Act for the rebuilding of those structures. They don't apply. And the other thing I wanted to clarify is we're not talking about a 10,000 square foot house or a 20,000 square foot house. We're talking about the pad area. And one other comment I have in regards to the precedent and why this is a statewide issue and what the presentation before you is incorrect on that was made by the county council's office is this is just what's done all up and down the state. That's not correct. In fact, in the Santa Monica Mountains immediately adjacent to our county, in Los Angeles County, and in the city of Malibu, again, immediately adjacent to us, if you are impacting ESHA, they have the 10,000 square foot pad limitation. You don't have to do an economics taking analysis. In fact, in my experience, the only time you have to do an economic takings analysis is if, in fact, you want to exceed those development standards. What is being put forward to you today is that somebody that has a developed, partially developed property, thousand square foot house, and there's many examples of this, and wants to come forward would essentially have to do a constitutional taking analysis, economic analysis. And as you heard Mr. Barnes articulate to you, your staff is very dubious that you could meet that, quote, very high bar. So I do also still want to thank you, the Board of Supervisors, the County Council's office, and the Planning Department in regards to the attention that they're giving to this important matter. So let's talk about ESHA, Environmental Sensitive Habitat Areas, and this is from the County Council and Planning Director's memo and report. The county's existing LCP's takings override process equally applies to proposed development on land with existing development in addition to land without existing development. Therefore, it is irrelevant whether or not there's existing development on the land. I cheered when I saw this. My staff and I and my associates were very pleased to see that this is the case. This means purportedly that somebody that has a completely vacant parcel will unfortunately have to do the same economic analysis as somebody that has a very small home. and wishes to do that addition, which is, in my experience, unprecedented outside of the County of Ventura. But nonetheless, they're articulating to you parity on this particular issue. Now the Coastal Act itself, it's been referenced that the Coastal Act is the master chef. Well, no, I disagree. The Coastal Commission is not the master chef. The Coastal Commission is just the Coastal Commission and they implement the Coastal Act and it specifies in the Coastal Act that the local coastal programs that the local jurisdictions will have a lot of latitude on how to interpret their local coastal programs. And one of the things I agree with in the staff report that was provided to you in the memo is I don't think you need to amend the local coastal program to address the very real risk that you will engage in unconstitutional takings. This can be dealt with with an interpretation. But what does the Coastal Act say? Under 30030, it specifies that neither the Coastal Commission or local government in acting to approve or deny a permit will exercise a power in such a way which will take or damage private property as defined by the Constitution of the State of California and by the Federal Constitution. And in fact, the Coastal Commission really respects that. They've got their fingertips burned on that once or twice. And they do not have the power for eminent domain. They cannot take property. That's what the Coastal Act says. Your staff report indicates that under 30010 of the Coastal Act, the term economically beneficial use is articulated in there. It is not. The term economically beneficial use is not in that section of the Coastal Act. It is in our LCP. Under 4.2, economically beneficial use is right in there. And it goes on to specify that the application of the policies will not deprive a property owner of economically beneficial use. That's also reflected in 5.2 of the local coastal program, that allowable building site must must give the property owner an economically beneficial use. However, Takings claim pursuant to all the jurisprudence up to the highest court in the land, is not economically beneficial use. It's the reasonable, economic-backed expectations of the property owner. And by the way, Chair Sandlin, that doesn't mean that you can turn around and sell it for a tremendous profit. It means that you get to develop your property consistent with what people rationally would expect. And that is, from Palazzolo versus Rhode Island, Supreme Court case 2001. So what County Council presented to you was this easy test, clear, bright line, as was defined in Lucas, where the South Carolina Coastal Council actually articulated it very well. Actually said, well, you know, you could build a deck on your beach lot, have a glass of wine, and enjoy the sunset. And the Supreme Court said, no. You have to allow somebody to have at least a house. But the Supreme Court refined that decision The Supreme Court under Palazzolo, which by the way, another component of that was the regulations were already in place when that property owner bought that land in Rhode Island. And the Supreme Court specified if it's unconstitutional, it's unconstitutional. And you start off with a bundle of rights, a stick of rights. And they said in that the government cannot argue that you start off with nothing because we have this ESHA policy, and we'll start giving you back sticks of your rights to make sure that we're not engaged in a taking. No, the government can exercise their police power and take away some of those rights. And the bright line there is you can't go beyond the rational economic backed expectations. It is not just economically beneficial use. The good news is, and why you can interpret this correctly, consistent with the case law and the precedent and what's done in the county of Los Angeles next door and the city of Malibu next door, is 4.3 of our local coastal program specifies that application of LCP policies and their standards would be unreasonably interfere with the applicant's reasonable investment-backed expectations. That's not economically beneficial use. Look. This county, if it was so inclined, could go right back to saying, you can invite friends over for having a party on the deck on your property. And so you've got some reasonable economic use. Or, as is being argued to you today, you've got a 700 square foot house. So you have some economically beneficial use. Commissioners, that is just not the test that the courts have established that has been implemented in the state of California and all over this country. It is, in fact, the reasonable economic backed expectations, and that's reflected in our local coastal program. The Equal Protection Clause does apply. It does. That's called the 14th Amendment. And if you've got somebody that has a vacant parcel and they demonstrate, well, the county, by the way, and this is something that you touched on, Chair Sandlin, if the county comes in and says, well, you've got a grade and access road that meets our fire department access standards, and that's going to be retaining walls, grading plans, et cetera, et cetera. You're going to have a couple hundred thousand dollars in soft costs to process the entitlements. You're going to spend a million dollars for the access road. But we're only going to let you have 1,000 square foot house. So now the property owner, after purchasing the property and implementing the improvements that the government requires, has a piece of property that is worth less than what they spent on it, that's called an economics takings. And that's why nobody limits anybody irrespective of ESHA except what is being thought of, contemplated here in the County of Ventura, to if you got a 10-acre parcel, 15-acre parcel, but you're stuck with a 1,000-square-foot home that was built in the 1960s, that clearly is not the reasonable economic-backed expectations of somebody that buys that house. Or if you have an elderly couple that has lived there for 50 years and is looking to sell it, basically the government would be reaching into their pocket and taking away their life savings. So unequal protection is just simply not allowed. The fact that a lot is already developed at the residence is strong evidence that the land already provides its owner with an economically beneficial use. This is in the memo from county council. The correct standard is the applicant's reasonable investment back expectations, not whether or not you have some level of economically beneficial use. And some level of economically beneficial use would be very different if you were in a back parcel in Kansas, beautiful state, have friends and family there, versus the Santa Monica Mountains in California where all the expectations are completely different, all the development costs are completely different. It needs to be structured with metrics that are applicable to our county and to the coastal zone and to the Santa Monica Mountains. So in conclusion, the LCPSHIP policies should be applied equally whether or not there is existing development. Now, I'm not aware, I could be wrong, some of your senior staff is not aware, of any application that has been made for somebody to develop a house on a vacant parcel in the Santa Monica Mountains in the coastal zone where they were required to do this very lengthy list of an economics taking that the staff is now saying is required for somebody that has an existing small house. Maybe it's happened. I do not want to misspeak in regards to this. But I'm not aware of it. The staff report in my conversations with your staff, they're indicating that they're going to require that for somebody that has a vacant parcel. But I want to tell you, in my experience, and I've been doing land use in the coastal zone for 40 years, the only time somebody submits an economics taking analysis is to go beyond the development standards, say the 10,000 square foot pad, and you need a 15,000 square foot pad, and you're demonstrating to the government that unless they bend that rule and that constraint, it's gonna be an economics taking, and it's basically queuing up for litigation. So what is being put forward here is that any applicant will basically, even if they have a 1,000 square foot house and they want to do a 2,000 square foot house, which means they're going to have to push out the brush clearance to meet the fire department access standards, which raise a whole other litany of other concerns in regards to this for public safety. that they're essentially going to have to do a prohibitively expensive and complicated economics analysis to convince the county to allow them to increase that 1,000 square foot house to a 2,000 square foot house. But not necessarily so, and I do need clarification on this, if it's a vacant parcel. And unless the county is doing that to everybody in the Santa Monica Mountains in Ventura County, then that is, in fact, not equal protection under the law. To avoid the unconstitutional taking issue, the property owner's reasonable investment-backed expectations must be considered. This isn't even close. It's not whether or not you have a house already or we're going to let you have a house. That's Lucas. And there's other Supreme Court case precedent in regards to this. This was refined under Palazzolo, and it was just like in Nolan versus the Coastal Commission where there had to be a nexus to a condition. The Supreme Court later on in Dolan versus the City of Tigard said not only does there need to be a nexus, but it needs to be proportional. So the Supreme Court over the decades has been increasingly refining their application of the Constitution on land use law. Relying only on the Lucas test is a fatal error for the County of Ventura. It is unequal protection of the law in violation of the 14th Amendment to treat property owners with existing development differently. And I would point out and reiterate and applaud the county again that the memo and the staff report says that's not going to happen. That's absolutely imperative. Everybody has to be treated equally. And so with that, I want to thank you very much for your time. I want to thank your professional staff in the County Council's office for their attention to this. This is the definition of good government, but it is complicated. I am available for any questions that you may have. I've been working on these issues for a very long period of time, and I appreciate your attention.

Any questions of the Commissioner, of the Speaker?

OK, in regards to like the gentleman that County Council talked about that bought a house, then decided he's going to do a wedding venue at it, his reasonable expectation, investment-backed expectation was going to make a lot of money. But we say, hey, no, he can't do that because it's in a residential neighborhood. Doesn't that open up us to a can of worms with that guy then?

No. And the reason it doesn't is because in that particular case, ostensibly, which I've not studied, that the proposed land use is not one which is specifically articulated as appropriate for that piece of property. So in that case... Wedding venues are very complicated, First Amendment protected for weddings and whatnot, but that's not your query. I understand that, Commissioner. But in that particular case, you had a property owner who said, look, I bought this. This was my expectation. I intend to make money. Let me do it. And in most circumstances, a regulatory body can say, no, that's not permissible in our zoning code. The question before you this morning is whether or not a property owner who proposes a house which is a permissible use, in fact, it's required as the principal primary use in the local coastal program, is allowed to have that house. THAT'S THE DIFFERENCE. SO IT'S A BIT OF A MISNOMER TO SPECIFY THAT THERE'S ANY SORT OF RELATION TO THAT SCENARIO VERSUS WHAT WE'RE TALKING ABOUT TODAY.

OKAY. THANK YOU. QUESTION AND CLARIFICATION ON WHAT HE JUST ASKED. IF THAT WAS A COMMERCIAL PROPERTY AND THAT WAS A USE THAT WAS ALLOWED IN THAT ZONING, We're talking about this wedding venue, right? If that was a commercial property and was allowed in that zoning, would it be a taking if the county did not allow them to continue to operate their wedding venue because that was a reasonable expectation?

There are specific criteria for that which are probably germane. And this is, in fact, reflected in the LCP and in the staff report and the memo. The property owner, whether they want to build a small house, I'm going back to the house, a small house, a large house, or something in between, they still cannot propose something which is a public nuisance. Local government, state governments, federal governments, they have every right in the world, in fact, a responsibility to say, no, you can't build, I'll give you an example, you can't build that house there because it's a landslide and you're going to put a septic system in it and it's going to cause the whole mountainside to come down and take out the neighborhood. That's a public nuisance. So in regards to the theoretical scenario that you're talking about, Chair, there's a lot that can go into that. But rational economic backed expectations are not carte blanche. It doesn't mean that you get to do whatever you want and the government's rules be damned. It really doesn't mean that. But what it means, that's flipping the discussion. What it does mean is that the government, for environmental reasons, which was exactly the topic in the Lucas case for South Carolina Coastal Council and in the Palo Zolo versus Rhode Island case, both Supreme Court cases, that environmental regulations cannot be implemented in such a fashion whereupon it would deprive a property owner of their constitutionally protected rights which the Supreme Court ruled is rational or reasonable economic backed expectations.

Makes sense. Makes sense. But I was flipping it on if it was a commercial property, it was not a nuisance, it was zoned in that area, would that be a taking?

It could be. I'd have to look at the specifics of that particular case.

That was good. Thank you. Any other questions of the? No? Seeing none, thank you for your presentation. Would staff like to make any closing remarks? Or Commissioner, Council Barnes, would you like to rebut anything that was said by the speaker?

I'm available for questions.

I will now close the public comments. We'll now proceed with the next item, a report from the Planning Director Ward on board actions and other matters.

Thank you, Chair Sandlin and commissioners. I don't have anything reportable from the board, but just looking ahead on your calendar, we do have in September, September 17th will be your next hearing. And this is the hearing that we will be going over the large reform package of our non-coastal zoning ordinance amendments. This is part of the board's directive in our work plan. so we'll be pleased to be presenting that item to you it does apply to all districts and countywide and then looking forward to October we do have a series of items queuing up so you definitely will have hearings in October and that's what I have to report for you for now thank you Director Ward are there any items the commissioners would wish to discuss or introduce

SEE NONE. I'LL ADJOURN THIS MEETING. THANK YOU.