Brown After-the-Fact Permit
|Summary||This project brought into discussion the interesting issue of a post-Coastal Act development requiring an after-the-fact permit for a seawall necessary to protect both the applicant’s home and a neighboring pre-Coastal Act development, plus the gravel that was placed on the mid and upper bluff, a new bluff top deck and a “deadman” retaining system on the bluff top.
The deadman retaining system was temporarily authorized under an emergency permit due to a large landslide that occurred in 1996. In 1997, the applicant still had not applied for a regular CDP for the retaining system nor had he applied for a CDP for the new bluff top deck that had been built. The Commission sent a Notice of Violation detailing the ongoing violations, but it was largely ignored. In 1999, additional bluff construction activities were undertaken without Commission approval and a letter to halt construction and reminding the applicants of the need to complete a CDP application was delivered. The back-and-forth of notifications sent, incomplete applications submitted and numerous other letters sent or submitted by the Commission Staff regarding the lack of compliance would continue for years.
A completed application for a CDP was finally submitted in October 2015.
While seawalls and other forms of hard armoring are not something to be celebrated, because this one was required to protect a pre-Coastal Act development, the fact that armoring impacts on sand supply and public access were acknowledged and factored into the conditions of the permit reflects Commission staff’s good work.
Originally, as a condition for the permit, the applicant was to pay a sand supply fee of $1,096. He would have also been required to pay a public access and recreation mitigation fee of $154,662 if Commissioners hadn’t opted to drop it due to claims of inequity with how past permits were issued to neighboring properties, ignoring the fact that the neighbors took permitting steps in a timely and cooperative manner. The sand supply mitigation fee was calculated to determine the volume of sand that would have reached the beach if not prohibited by the shoreline armoring over a 22-year period. The public access and mitigation fee would have been to mitigate for the adverse impacts to public access and recreation resulting from the project (due to loss of beach). The final motion held the applicant responsible for the sand supply fee, but not the public access and recreation mitigation fee. He was determined to be responsible for a fee of $5,833 (factored by the square impacts of the wall).
|Outcome Description||It was heartening to hear discussion around the loss of public access and resources due to private property owners trying to protect their assets. However, starting off with a line of inquiry from Chair Kinsey, “If the wall is constructed beyond the mean high tide line, what loss to public access really exists?” the initial proposed access mitigation fee was removed. Interim Executive Director Ainsworth clarified that the seawall impacts the existing lateral easement and the beach fronting the wall, meaning, it impacts the amount of beach the public can access.
Staff documentation showed that during high tide, the water line goes all the way up to the wall itself. This means a loss of public access. Interestingly enough, while Commissioners seemed to accept that the wall would inhibit sand resupply to the beach, transferring this knowledge to understand that the beach would then thus diminish over time as a result was not conceivable and thus not grounds enough for the access and recreation mitigation fee proposed.
In the end, claiming fairness of how past permits were issued to neighboring properties – while not taking the difference between the proactive neighbors and the latently reactive applicant, the public access and recreation mitigation fee was dropped from $154,662 to $5,833.
These fees will be reassessed once the 22-year permit has expired.
|Why You Should Care||Hard armoring is currently, and unfortunately, the panacea to coastal erosion and means of protecting infrastructure against the effects of sea level rise, wave events, and storm surges. Additionally, bad actors should not be able to get away with “asking for forgiveness rather than permission” – unpermitted seawalls and development must result in substantial penalties for the law to be effective.
What they actually result in, as is discussed in this report (http://law.stanford.edu/wp-content/uploads/2015/07/CalCoastArmor-FULL-REPORT-6.17.15.pdf), is an increased rate of beach loss and increased erosion to neighboring properties due to the loss of sand that would naturally be replenished if not for the presence of hard armoring (such as a seawall or revetment). This directly translates to loss of public land.
Loss of beach is a loss of beach access. This project factors in both the loss of sand replenishment as well as calculates the loss of beach access, resulting in a fee to be paid by the applicant. Hard armoring cannot be seen as a quick and easy fix. Moving forward, people – and most importantly, Commissioners – must understand the science and dynamics impacting their properties and infrastructures – and if they don’t, they’ll certainly understand the impact to their wallet.
|Decision Type||After-the-Fact Coastal Development Permit|
|Staff Recommendation||Approval with Conditions|
|Opposition to Project||Surfrider Foundation|
|Coastal Act Policies||Chapter 3 Policies|
Voting Detail for Brown After-the-Fact Permit
|Mary K. Shallenberger|
View Meeting Page for the meeting where this issue was discussed/voted on.