Wednesday, January 11, 2012

More seawalls stuff

You can't legislate what city staff values. You can change policies and endorsed practices.


This is from a letter sent to City Manager Vina from the Coastal Environmental Rights Foundation.


Re: Notice of CEQA Violations: Pattern and Practice
Failure to Mitigate Impacts of Coastal Armoring

Dear Mr. Vina:
Please accept this letter on behalf of the Coastal Environmental Rights Foundation (CERF).
CERF is a nonprofit environmental organization founded by surfers in North San Diego County and
active throughout California’s coastal communities. CERF was established to aggressively advocate,
including through litigation, for the protection and enhancement of coastal natural resources and the
quality of life for coastal residents.

This correspondence serves two purposes. First, it is to put the City on notice that the
Municipal Code, as drafted and implemented, constitutes a “pattern and practice” violation of the
California Environmental Quality Act (CEQA). Second, CERF hereby requests a meeting with you,
the City Attorney, the Planning and Building Director, and a representative of the City’s Risk
Management Division to discuss CERF’s claim and possible avenues for resolution. CERF’s goal is
to provide the City an opportunity to work collaboratively with us and the community without the need
for litigation.

Specifically, Encinitas Municipal Code section 30.34.020 (Coastal Bluff Overlay Zone),
subsection (B)(9) contemplates the City development and adoption of a:
“comprehensive plan, based on the Beach Bluff Erosion Technical Report
... to address the coastal bluff recession and shoreline erosion problems in
the City. If a comprehensive plan is not submitted to, reviewed and
approved by the Coastal Commission as an amendment to the City’s Local
Coastal Program by November 17, 1996, then ....the City shall not permit
the construction of seawalls, revetments, breakwater, cribbing, or similar
structures for coastal erosion except under circumstance where an existing
principal structure is imminently threatened...” (Emphasis added).
Because the comprehensive coastal erosion plan contemplated by the Municipal Code has
not been produced, the City’s pattern and practice has been to mandate applicants wait for
emergency conditions to arise, then require them to obtain emergency permits from the California
Coastal Commission. After the “emergency” coastal armoring is fully built (often substantially larger
and more permanent than the failed structure), the City processes a Major Use Permit and Coastal
Development Permit for the as-built seawall or other coastal armoring. Because there is no proactive
planning for such coastal armoring – despite its unquestionable inevitability – every single permit that
comes forward evades CEQA review and is instead deemed exempt from CEQA pursuant to
California Public Resources Code section 15269 (Emergency Projects).

The Encinitas Planning Commission approval on January 5, 2012 of Case #09-035 MUP/CDP
(Blue Curl LLC, 1084 & 1086 Neptune Avenue, APN: 254-291-02&18) provides a very recent
example of this problem. Both CERF and the Surfrider Foundation provided multiple written
comments detailing the illegalities of approving the follow-up permits without requiring substantive
CEQA compliance – including consideration of alternatives, cumulative impacts, and mitigation. By
“tiering” off of the emergency exemption applied for the new structure’s original construction, the City
effectively fails to require: (i) a full assessment of alternatives; (ii) consideration of cumulative
impacts; or, (iii) imposition of appropriate mitigation. Statements by staff and Commissioners at that
hearing validate the critical points of this correspondence and CERF’s claim, namely: (a) this pattern
and practice of approving after-the-fact permits without substantive CEQA compliance is “the way
the City’s always done it”; and (b) if an applicant came forward and sought to obtain approval for a
seawall before an emergency condition arose, there would be no process for them to do so.
Please do not misinterpret CERF’s goals. We are not advocating for additional, proactive
seawalls throughout Encinitas. Rather, the City must recognize that its current practice fails to
provide the requisite analysis of impacts and mitigation requirements – in particular on a citywide
cumulative basis – and therefore either the comprehensive plan contemplated by the Code must be
completed or the City must require such analysis with the after-the-fact permits. The situation
currently facing the City of Encinitas is analogous to that in the City of Solana Beach over the last
15+ years. As a result of significant community involvement and numerous lawsuits, Solana Beach
is now seeking approval of a Local Coastal Program that would include, in conjunction with the rights
of bluff top homeowners to construct limited duration (80 years) emergency coastal armoring, the
ability for the City to recover “Land Lease/Recreation Fees” to mitigate for the inevitable loss of public
beach access due to the various types of coastal armoring impacts. (See attached).
This is what CERF seeks for Encinitas. At the meeting we are requesting with City Staff,
CERF would like the opportunity to provide additional detail regarding the evolution of coastal
armoring policies in Solana Beach and how Encinitas can benefit from its neighboring city’s
experiences. In light of evolving regulatory policies to deal with the very real likelihood of sea level
rise due to global climate change, it will benefit the City of Encinitas to be proactive on coastal
protection issues. The alternative, resolution through litigation, has been both expensive and
ineffective in other cities that have opted to do so only after having been ordered by the courts.
CERF is based in, and has numerous members from, the City of Encinitas. Hence, we would
greatly appreciate the opportunity to collaborate rather than litigate. I look forward to your
consideration and meaningful response.

29 comments:

  1. The City Planning and Building Department has agreed to collaborate with Leucadia Neighbors on issues involving the seawalls and Beacon's Bluff.

    I'd appreciate it if the writer of the post would contact me so as to give Leucadia Neighbors a better understanding of the issue.

    Bob Aronin
    neighbors@leucadians.com

    ReplyDelete
  2. I really don't get Marco Gonzalez, Coast Law Group, CERF, Surfrider, etc.

    He writes this little letter to the City like a gun to their head, then says, "We'd love to collaborate with you because we've learned so much from suing your neighbors, that we could really be a big help, but if not, we'll sue you" Very friendly guy. Would you be anxious to work collaboratively under those terms?

    I kinda get his drift here, but the sleeping giant everyone is deathly afraid of is the almighty Coastal Commission. No coastal city has a positive relationship with the Coastal Commission.

    Many coastal cities including Encinitas do not have a "complete" LCP. Part of the problem is that the Coastal Commission is so punitive, powerful and one-sided that no one wants to play.

    The Coastal Commission has been historically so strongly slanted in deep ecology that the possibilities for any significant armoring are limited. Lately they have wanted to charge enormous fees if you were lucky enough to get armoring approved. In addition, those structures might only be good for 20 years, then requiring renewal, or elimination.

    All this requires a little digging because everyone involved has their own agenda...including Marco, Surfrider, the Coastal Commission and other players...not always as it seems.

    ReplyDelete
  3. Leftcoast - what do you mean by "significant armoring"? Paddle out south of Beacons... There is obvious significant armoring in place. That protection of private property interests comes at the substantial expense of the public. OUR beaches will inevitably suffer sand loss and unnatural wave refraction.... And they have already suffered aesthetically unless giant slabs of concrete are your preferred coastal visual. Our community should be grateful to the Commission, Marco, Coast Law Group, CERF, Surfrider and anyone else looking to protect the local environment, beaches, and wave quality for generations to come.

    ReplyDelete
  4. Agreed. The county should enact an assessment district to collect review and buy all the bluff top properties at fair market value and then turn the entire bluff top into a natural bluff top county park. Let the general public pay for the naturally occurring general bluff erosions. I'd vote in favor of such a district. Or get the state to legislate it into State Law. Its the only fair solution. Either that or let the lawsuits continue.

    ReplyDelete
  5. Thanks, some really good points made, but the assumption is that anything "man-made" is not worth protecting or preserving, and that nature should be allowed to do as it will.

    I also recognize that just because we have the tools/technology to protect, we shouldn't apply it in every case.

    Given that we have privately and publicly built on our bluffs from one end of California to the other, does imply that we intended to maintain these homes, public structures, lighthouses, parks, etc. from the wrath of nature if possible.

    We don't apply this concept to other nature vs. man-made constructs. We do try to keep elements in check where we can.

    It's a very complicated question. More than simply protecting private property from wave action.

    ReplyDelete
  6. Lc-
    What's ur thoughts on the public buying all the blufff top land?

    ReplyDelete
  7. Lc-
    What's ur thoughts on the public buying all the blufff top land?

    ReplyDelete
  8. Alfred...I like the idea, but I wonder about implementation.

    Do the various Counties purchase the land and improvements within some given timespan? Are owners given bluff protection, but the "cost" is signing the agreement? Sounds like a hostile takeover. Maybe over a 50 or 100 year period?

    Really, you are taking private property for some nebulous public benefit, an eminent domain effort I guess. Lawyers like Marco might love the possibilities.

    But, generally, returning parts of the coast back to the populace is a worthy goal.

    ReplyDelete
  9. In most things I don't agree with Marco Gonzales. Fireworks in La Jolla aren't ruining our environment. That said, I agree with him on this letter. If the City has rules then they should follow them to a "T" or get rid of them.

    I've advocated for years that this City should purchase bluff property as it goes up for sale and turn the property into parks. Overtime the problem of these property owners crying would go away.

    Did these people not know that one day the sea would reclaim the bluffs?

    ReplyDelete
  10. Buying the bluffs is a nice idea but totally unrealistic.

    There are hundreds of properties on the bluff side of Neptune. Average value well over a million.

    You're talking hundreds of millions of dollars.

    The city can't even scrape together a few million to build the Hall Park. Where are they going to get hundreds of millions?

    ReplyDelete
  11. Dr. Bagus should be Bogus Bagus. Retaining walls are not going to change the wave pattern, nor does bluff erosion contribute signifcantly to the beach sand. The majority of the sand came from inland to sea river depositions - as urban development and coastline marinas were built, that radically changed the volume and rate of material available to replenish the beaches. Also, the channeling of the rivers causes the sand to be deposited further off shore so that the wave action cannot redeposit it back onto the shoreline.
    Surfriders are an egocentric, jealous of bluff owners group of malcontents. If they're so "organic", get off your petrol-based plastic boards and wetsuits and ride on natural wood.
    Bagus needs to be reeducated on geology and psychology - he is obviously badly misinformed.

    ReplyDelete
  12. What Observer has said has been documented by many studies of our shoreline. We are left with sand replenishment as our only tool. It has been noted many times that the best protection of our bluffs is a wide, sandy beach.

    My objection stems from the extreme attitude of Surfrider/Marco/Coastal Commission.

    The Coastal Commission was brought into being because of complete disregard for the resource. They were charged with balancing development with the responsible use of the coast for all citizens. This included access as well as recreational aspects.

    The Coastal Commission today sees their objectives far beyond this. They are trying very hard to get the state to allow them to levy penalties on those that cross them, and want now to bankroll this money to fund their future power. They are out of control. In the past several Governors have tried unsuccessfully to temper their powers. They hope to become a regulating body, capable of fining offenders and collecting outlandish fees for their approvals.

    Don't get me wrong, we need an entity like the CC. We just need them to strike that balance they were charged with maintaining.

    ReplyDelete
  13. WC The City would not buy the land. It would either be a county or State proposition. Of course it would need to go to the voters. I think the cost per parcel of every land in California would be very low for buying all the million dollar lots along the cost. I be it would work out to less than $5 a year or less for 20 years and our we would truly enjoy a natural state beach and the private property owners would be paid. Most could be bought when the current owners die, or sooner. Or we could always use eminent domain; After all the USA actually owns all your land. You just get a piece of paper that says you currently have certain rights to it and you have to pay taxes on it.

    Lets make natural coast happen. Lets start a county wide petition. Think of the amazing bluff top parks that we could enjoy. Everyone would enjoy the great ocean views. Not just a few.

    ReplyDelete
  14. I don't have a strong idea about this topic. I do have a hard time with the restricting of seawalls on private property but I also don't think that access through public property to build them should be a right of bluff top property owners.

    I have a strong opinion on the city creating clear rules (with mechanisms for transparent and fair application of variances) and that the city follow its own rules or, changes its rules so its not just the insiders who can adequately valuate property and know what to expect of our neighbor's futures.

    leftcoast,

    Which studies? Can you be specific about a couple? Do those studies say that before urbanization that the bluffs were not subject to shoreline erosion (they sure look steep in historical photos). What do they say about the the amount of sand on our beaches before urbanization? Did we have much more than there is now?

    What fraction of our sand comes from bluff erosion now? How much was it before they put in the Oceanside harbor? (the studies I've read indicate its a fallacy that we got much sand from our local creeks. )

    Do you disagree that we should first decide if something is broken before trying to fix it. Regardless, if we want to change something we should be very careful to determine what we are trying to change. Are we really trying to stop bluff erosion with sand replenishment? Is that the goal for the use of the "tool".

    How much sand would be necessary for that to work (what rate)? How much sand has been dumped and at what cost, so far? Is it a realistic tool? Finally, who should pay for it?

    (don't know about the Coastal Commission comments)

    ReplyDelete
  15. Alfred,

    There are only 30 million people in California. Charge $5 a head, and you're only at $150 million, not enough to buy up the properties on Neptune alone. Do it for 20 years and you might get a good chunk of North County oceanfront bought, but then those people in LA and SF and Sacramento are not very likely to want to pay for that.

    ReplyDelete
  16. Alfred is keen about using eminent domain to seize private property along the bluff line. Let's seize his property first and put a McDonalds on it - that would bring in a better tax base for the city.

    ReplyDelete
  17. Over 800+ homes have been approved on the land located near I-15 and Hwy 76 - right on the San Luis Rey River watershed. This river sends appreciable sand down to the coast, contributing to the beach configurations. Where are the Surfriders and the other 'activists' - o yea, they're complaining about a small cement abutement - a case of can't see the forest for the trees.

    ReplyDelete
  18. Observer,

    Old time Surfrider people will know that I worked to help SR see both the forest and the trees and to make sure their goals were about the environment, not about membership/donation drives (which should be a means, not an ends). So I could easily pile onto the shoot the messenger thread pretty easy, but SR is not accountable to the public.

    The city is ours. It is our responsibility to do know that the administration of the city is being carried out diligently and for the public good. Should we ignore the public policy and public administration issues brought up by someone we might not align with?

    What do you think about the policy the city's administration on this issue?

    (btw, which of our local supply sources have been impacted by channelization?)

    What is your take on these studies of bluffs as a source of sand?
    http://scrippsnews.ucsd.edu/Releases/?releaseID=694

    ReplyDelete
  19. I fully support building seawalls and think letters like this are, frankly, laughable. It's private property and if they want a seawall, they should be able to build it.

    But apparently we have those who don't believe in private property rights and it shows here and with the Coast Law Group.......and this letter.

    All they do is like to file lawsuits and we know that the CLG has been involved in stupid litigation (wasting taxpayer money in the process) all over San Diego.

    I say the city and/or the homeowners hire some lawyers and file lawsuits against Surfrider, CERF & the Coast Law Group.

    ReplyDelete
  20. Let me circle back around to the letter and its "demands."

    When the City first processed our Local Coastal Plan, it was for various reasons incomplete. The biggest reason was the Coastal Commission disagreed with how the City wanted to handle the "front row", both in protection and improvements. This is why the rules are so goofy regarding remodel or replacement of homes there.

    We basically put off completing that part for years now. The letter is sort of a wake up call to finish the process. The big question is how the Coastal Commission will now view these issues. Keep in mind the City can submit anything, but it then has to be accepted and approved by the CC. At this point several coastal cities have just given up trying. The CC will only accept their limited period, extravagant fee, only for "emergency" solution. Another gun to the head.

    On a side note...there are days I wonder if we're not heading for bureaucratic paralysis.

    ReplyDelete
  21. Screw the bluff. The city should buy those car dealers on El Camino and give us all new cars. I want a red car.

    ReplyDelete
  22. WC-

    Charge 5 a head for 50 years and you have 50 time that total. Lets say $50 per parcel for 50 years. Its is worth the end result. $75,000,000,000. would buy a lot of bluff top park. Wouldn't you agree? Whats your solution?

    ReplyDelete
  23. I hate this new format. The font is hard to read. JP please use presidential powers and correct this crap.

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  24. Alfred,

    If you can persuade legislators or voters from Sacramento, Fresno, Bakersfield, and Riverside to tax themselves to buy coastal property, you're a better man than I.

    We need a clear, statewide policy. We're either going to allow seawalls or we're not. If we decide not to allow seawalls, then oceanfront buyers know they are buying temporarily, not permanently. That's OK.

    I think inland development is a bigger problem for sand replenishment than seawalls. How bout we ban density bonuses and state housing mandates first?

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  25. Left coast,

    Those are important considerations to understand the what is going on. Thanks for adding that. It is key, and more important that the other side shows.

    (So, less important, but left hanging, How about the sand studies?)

    ReplyDelete
  26. The reason CA is a desirable place to live is the beach. Riverside and Sacramento also benefit. Assess them all. It would be better than Yosemite.

    ReplyDelete
  27. wc

    the local elected's have been able to convince non-bluff owners to subsidize bluff property protection efforts so maybe its possible.

    ReplyDelete
  28. If they just lowered the bluff and created a gentle slope from the golf course, we could create a 6' seawall for a lot less money and provide ocean views for everyone at the same time.

    ReplyDelete

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