December Hearing Report

From ActCoastal

By Mandy Sackett | Published 2017/01/05

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Commentary is provided by ActCoastal partners.

This blog represents the views of the authors, and does not necessarily reflect the positions of ActCoastal and its partner organizations.

December Coastal Commission Hearing: an overview

December’s Coastal Commission hearing covered a range of important topics including coastal access, recreational resources, and the application of recently vested power to levy administrative fines for Coastal Act violations. Most notably, Commissioners voted to levy administrative fines for an egregious and ongoing access violation in Malibu to the tune of $4.2 million. Several vote charts resulted, click here to see how the Commissioner’s voted.

Coastal Access Victory in Malibu

A much-anticipated Malibu access case came before the California Coastal Commission at its December 8 meeting. At hand was the first recommendation from enforcement staff that the commission levy civil penalties, a power only granted to the agency by the state legislature in 2014. Due to the amount of time lapsed and the recalcitrance of the parties involved, staff asked commissioners to fine Dr. Warren M. Lent and his wife Henny $950,000 over their refusal to cease blocking the only vertical public access to Malibu’s Las Flores beach.

Commissioners supported the action unequivocally, with Commissioner Effie Turnbull-Sanders pointing out that the Lents had “many opportunities” to resolve the issue over the past nine years and calling the case “particularly egregious” in regards to the impact on staff time. “This is a matter of justice,” she said. “What does access mean?” She called for the penalty amount to reflect the severity of violation and said the requested amount was “a little light.”

Commission Mark Vargas spoke even more strongly regarding the appropriateness of “a lot more substantial” penalty and echoed the description of the case as “egregious,” as well as characteristic of many in Malibu who consider the beach their own private backyard.

Commissioner Mary Shallenberger shared the sentiments of other commissioners, saying, “$950,000 doesn’t reflect the public’s loss, [nor that of] staff time and energy.” She asserted that she would not be supportive of any amount less than 50 percent.

After further discussion, Commissioner Shallenberger motioned for a penalty of $6.5 million to be levied. The motion was supported by Commissioners Olga Diaz (Alternate for Commissioner Greg Cox), Carole Groom, Mary Luevano and Dayna Bochco, but opposed by Commissioners Martha McClure, Wendy Mitchell, Turnbull-Sanders, Robert Uranga and Vargas, thus failing.

Commissioner Vargas then made a motion for a fine of $4.1 million to be levied, which was approved unanimously. Read more about this victory here.

San Elijo Lagoon Restoration Approved

Coastal recreationalists can give a resounding cheer after the Coastal Commission’s decision to extend surf monitoring to a full 12 months as part of approving the San Elijo Lagoon Restoration Project located within the San Elijo Lagoon State Marine Conservation Area (SMCA) in San Diego County.

Overall, the proposed restoration project is expected to significantly improve the circulation of the lagoon, water quality and the long-term biological productivity of coastal waters. It also takes sea level rise into account and is expected to decrease the number of flooding events on Manchester Ave. Staff recommended approval with a variety of special conditions to mitigate impacts associated with dredging and sediment placement. The Special Conditions direct the San Elijo Lagoon Conservancy to track any impacts to the marine protected area with 5-year monitoring plans for ecological and biological impacts.

Partner organization Surfrider Foundation’s San Diego County Chapter participated in the project design and asked for the inclusion of surf monitoring, which is reflected in Special Condition 9. Unfortunately, staff originally only recommended 30 days of post-development monitoring, subsequently extended to 6 months in an addendum. Given the length of monitoring other coastal resources were given, this expressly failed to equally value recreational resources. ActCoastal partner Surfrider Foundation gave testimony as to why 12 months of surf monitoring is necessary given the variability of conditions throughout all four seasons and the likelihood of a storm or swell even that can drastically change shoreline conditions overnight.

During deliberation, Commissioner Mark Vargas took an interest in the project’s potential impacts to the nearby surfing resources saying, “It’s hard for people to visualize, but surf breaks like Swamis are basically the equivalent of Yosemite or Half Dome. They really are iconic treasures of California, and above that they are tourism drivers. People come from around the world to go swim and surf your breaks, so we have to be careful.”

Commissioner Vargas then motioned to amend Special Condition 9 to extend surf monitoring for a full 12 months post construction. The Commission approved the project as amended and in doing so acknowledged the importance of surfing resources. This will also set an important precedent for the state of California and the need to protect recreational resources.

Access at Long Last: Strands Beach

The Dana Headlands development has been controversial from the start due to many environmental concerns, including development within environmentally sensitive habitat areas (ESHA) and loss of informal public access trails over the site. The development was also found to be inconsistent with the Coastal Act in a number of ways. For example, the Commission found it could only approve the HDCP (Headlands Development and Conservation Plan) by invoking the conflict resolution provisions of the Coastal Act. Specifically, the Commission found the pedestrian accessways to be a substantial benefit of the development; as a result, numerous provisions of the HDCP expressly limit the use of gates to restrict public access within the Headlands.

Nonetheless, in 2009, before the development was even completed, at the request of the developer, the City of Dana Point attempted to limit the public access that had been the basis for approval of the development through various approaches, including the adoption of municipal ordinances that limited hours of use of the beach accessways and, most notably, installation of gates at the entrances to the beach accessways, all of which occurred without the necessary Coastal Development Permits (CDP). Staff and the City disagreed over the City’s actions and need for Coastal Act review. In 2010, Commission staff took the position that the City’s ordinance could be appealed – and from there, multiple lawsuits ensued. Ultimately the cases were consolidated, trials were conducted and judgments were entered and appealed. The judge concluded that the City failed to demonstrate an actual and unnecessary hazard existing at the site and the recent December hearing followed a settlement agreement for this litigation. Read more about the settlement here.

But the City wanted to keep the gates installed on these accessways and allow them to be locked from midnight to 5 a.m., which again called into question the consistency of the entire Headlands development with the Coastal Act. Staff recommended that the Commission prohibit the use of gates for enforcement altogether, because the presence of gates, whether open or closed, can give the impression that the accessways are not available for public use.

Commissioners Martha McClure, Mark Vargas, Robert Uranga and Steve Kinsey stated their support for overruling the staff recommendation and allowing the gates. As a result, they supported the motion to accept the amendment as submitted by the city. However, a majority of Commissioners agreed that gates should not be allowed, and supported the staff recommendation with a vote of 8-4.

For more information on these and other important votes this month, please read the vote chart here. The December Coastal Commission hearing will be held in San Luis Obispo County, January 11-13. You can view the agenda here.