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HomeMy WebLinkAboutCDP 09-13; Goetz Seawall; Coastal Development Permit (CDP)STATE OF CALIFORNIA -- THE NATURAL RESOURCES AGENCY EDMUND G. BROWN, JR., Governor CALIFORNIA COASTAL COMMISSION SAN DIEGO AREA 7575 METROPOLITAN DRIVE, SUITE 103 SAN DIEGO, CA 92108-4421 (619) 767-2370 F10a Staff: T. Ross Filed: June 15, 2010 49th Day: Waived Staff Report: October 13, 2011 Hearing Date: November 2-4, 2011 STAFF REPORT AND RECOMMENDATION ON APPEAL LOCAL GOVERNMENT: City of Carlsbad DECISION: Approval with conditions APPEAL NO.: A-6-CII-10-043 APPLICANT: Dean Goetz and Marshall Sylver PROJECT DESCRIPTION: Follow-up coastal development permit for work authorized pursuant to an emergency permit for the construction of a 97' long and 17-24' high, colored and textured seawall on the public beach fronting two coastal blufftop lots currently developed with two single family homes. PROJECT LOCATION: 5323/5327 Carlsbad Boulevard, Carlsbad, San Diego County. APPELLANTS: Commissioner Sara Wan and Commissioner Esther Sanchez, Surfrider Foundation. SUMMARY OF STAFF RECOMMENDATION: The staff recommends that the Commission, after public hearing, determine that substantial issue exists with respect to the grounds on which the appeal has been filed. The main concern associated with the project is that construction of a seawall was approved by the City to protect the public beach, and not for protection of the existing blufftop homes. The City’s LCP policy addressing the preservation of coastal bluffs mirrors Coastal Act Policy 30235. The City, therefore, limits the circumstances for when a seawall shall be approved. Traditionally, seawalls are proposed on residentially- designated, ocean-fronting lots to protect an existing structure immediately threatened and in danger from erosion. Based on the provided geotechnical analysis, neither of the existing blufftop homes is currently threatened or in danger. In this case the City determined that a seawall was required to protect a public beach in danger from erosion. Specifically, the City found that the pocket beach in front of the coastal bluff was in danger in danger from erosion in that the bluff could have an episodic failure, resulting in a significant volume of sand falling onto the above described pocket beach and potentially injuring beachgoers. In other words, the City approved a seawall to protect A-6-CII-10-043 Page 2 the beach-going public from the dangers associated with naturally occurring bluff erosion. However, the City made contradictory findings in citing that the beach in front of this bluff is, in fact, a private beach. Thus, how can a public beach be in danger from erosion and at the same time, be private? Regardless, even if the beach is public, the evidence does not support a finding that the proposed seawall is required to protect the public beach in danger from erosion. Thus, if the City or Commission on appeal is not required to approve the seawall, its construction must be reviewed against all other applicable LCP policies. The City’s LCP requires that all such developments include an alternatives analysis, and no specific alternatives were adequately discussed or explored. Furthermore, the construction of the seawall will require both grading and fill on a coastal bluff, inconsistent with the City’s LCP. Additionally, the construction of the seawall will result in impacts to sand supply, and potential impacts to public access. As approved by the City, impacts to sand supply and public access were not mitigated appropriately, also inconsistent with the City’s LCP. Commission staff recommends denial of the application on de novo. The proposed project will result in the adverse impacts described above. While the seawall has already been constructed pursuant to a emergency coastal development permit, the subject appeal is the result of a follow-up regular coastal development permit to the emergency permit issued by the City of Carlsbad in 2009. As previously stated, based on the provided geotechnical analysis, neither of the existing blufftop homes is currently threatened or in danger from erosion, instead, construction of the proposed seawall was approved on the basis of its finding that the seawall was required to protect people using the public beach. Such is not one of the basis for requiring approval of a seawall pursuant to the certified LCP; and, is therefore inconsistent with the applicable provisions of the City’s certified LCP as well as with the public access and recreation polices of the Coastal Act. Standard of Review: Certified Carlsbad LCP and the public access and recreation policies of the Coastal Act. SUBSTANTIVE FILE DOCUMENTS: Geotechnical report prepared by Converse Consultants dated September 20, 1984; Coastal Commission comment letter sent June 26, 2009; Coastal Commission reviewed City of Carlsbad appealable coastal development permit Nos. 6-CII-97-084/Jensen, 6-CII-00-038/Jensen, 6-CII-00- 044/Jensen, 6-CII-01-093/Jensen; 6-CII-11-137/Jensen, 6-CII-02-028/Goetz; 6- CII-09-060/Goetz & Dean; Irrevocable Offer to Dedicate Lateral Beach Access Easement recorded as Document #2000-0346365 on June 30, 2000; Report prepared by the California Coastal Commission titled California’s Battered Coast dated 1985; Scientific article published in Shore and Beach Vol. 74, No.1 prepared by Jenifer Dugan and David Hubbard, 2006; City of Carlsbad Resolution No. 6677; Appeal forms. I. Appellants’ Contentions: A-6-CII-10-043 Page 3 There are a number of concerns raised by the appellants. The primary concern related to the approval of the seawall is the merits on which the construction of the seawall was approved. The seawall is not necessary to protect the existing structures in that the existing blufftop residences are located approximately 45 feet away from bluff edge and are not in danger from erosion. Seawalls are only required to be approved when the evidence shows that there is a threat to an existing principal structure or to protect a public beach in danger of erosion. In this case, the City approved the seawall to protect beach goers from failing bluff material falling down onto the public beach below. Breakwaters and groins have previously been approved to protect public beaches, but the construction of a seawall on a bluff fronting a residential lot has never been approved by the Coastal Commission to protect a public beach. In fact, the City also did not approve the seawall on this basis, it found, instead, that the seawall was needed to protect the public using the beach, which is not one of the situations in which seawalls are required to be approved. Approving a seawall on the basis that it is constructed to protect the public using the beach, and the precedent it could establish, are the primary concerns raised by the appellants. Because the construction of the seawall isn’t permitted through the City’s LCP Policy 4-1, mirroring Coastal Act policy 30235, the project would have to be found consistent with all other applicable Carlsbad LCP and Coastal Act policies as it is not required to be approved. As such, a number of additional concerns are raised, and discussed below. The appellants contend that the project approval violates Carlsbad’s Local Coastal Program in that there are numerous other environmentally superior alternatives that could be used to protect people from the alleged risk. Additionally, the appellants contend that the project cannot comply with the LCP because the LCP requires the project to dedicate to the public for public access at least 25 feet of beach width in front of the seawall. No such dedication was included in the City’s approval. The appellants further contend that the project is inconsistent with the City’s LCP because construction of the seawall required grading and filling, and development of a permanent structure, on a bluff face. As approved by the City, the construction of the seawall included grading to be removed and then replaced on top of the coastal bluff. The project fails to mitigate adverse impacts to shoreline sand supply. Specifically, the City required $2,469 as mitigation for impacts of the seawall on shoreline sand supply, which was based on a questionable calculation of the erosion rate and an estimate of sand replenishment costs of $3 per cubic yards of sand, which is not supported by adequate evidence and is significantly lower than estimates for the cost of sand obtained by other applicants for prior projects. In addition, the appellants question the seawall’s impact on biological resources, as well as the project’s affect on public views from the water back to the coast and along the ocean. II. Local Government Action. The local government reviewed and approved an emergency permit for the project on April 16, 2009. This permit expired on May 16, 2009 due to failure to exercise and comply with all of the conditions of the permit. On June 10, 2009 the Planning Director issued another Emergency Coastal Development A-6-CII-10-043 Page 4 Permit. The finding of emergency was upheld by the City Council on June 16, 2009. The City’s staff report indicates that two Notices of Final Action were sent to the Coastal Commission immediately following approval of both emergency permits. The Carlsbad Planning Commission approved the follow-up Coastal Development Permit No. 09-13 on April 7, 2010 with a number of special conditions that included the payment of a sand mitigation fee in the amount of $2,469.00, a monitoring and maintenance program for the seawall, and the recordation of a deed restriction memorializing these requirements. On April 19, 2010 an appeal of the Coastal Development Permit was received by the City. On May 25, 2010 the City Council upheld the Planning Commissions approval of CDP No. 09-13. III. Appeal Procedures. After certification of a municipality’s Local Coastal Program (LCP), the Coastal Act provides for limited appeals to the Coastal Commission of certain local government actions on coastal development permit applications. One example is that the approval of projects within cities and counties may be appealed if the projects are located within mapped appealable areas. The grounds for such an appeal are limited to the assertion that “development does not conform to the standards set forth in the certified local coastal program or the [Coastal Act] public access policies.” Cal. Pub. Res. Code § 30603(b)(1). After the local government has taken final action on an appealable project, it must send a notice of that final action (NOFA) to the Commission. Cal. Pub. Res. Code § 30603(d); 14 C.C.R. § 13571. Upon proper receipt of a valid NOFA, the Commission establishes an appeal period, which runs for 10 working days. Cal. Pub. Res. Code § 30603(c); 14 C.C.R. § 13110 and 13111(b). If an appeal is filed during the appeal period, the Commission must “notify the local government and the applicant that the effective date of the local government action has been suspended,” 14 C.C.R. § 13572, and it must set the appeal for a hearing no later than 49 days after the date on which the appeal was filed, unless the applicant waives this deadline. Cal. Pub. Res. Code § 30621(a). Section 30625(b)(2) of the Coastal Act requires the Commission to hear an appeal of the sort involved here unless the Commission determines that no substantial issue is raised by the appeal. If the staff recommends “substantial issue” and no Commissioner objects, the Commission will proceed directly to the de novo portion of the hearing on the merits of the project then, or at a later date. If the staff recommends “no substantial issue” or the Commission decides to hear arguments and vote on the substantial issue question, proponents and opponents will have 3 minutes per side to address whether the appeal raises a substantial issue. It takes a majority of Commissioners present to find that no substantial issue is raised. If substantial issue is found, the Commission will proceed to a full public hearing on the merits of the project either immediately or at a subsequent meeting. If the Commission conducts the de novo portion of the hearing on the permit application, the applicable test A-6-CII-10-043 Page 5 for the Commission to consider is whether the proposed development is in conformity with the certified Local Coastal Program. In addition, for projects located between the sea and the first public road paralleling the sea, Sec. 30604(c) of the Coastal Act requires that, for a permit to be granted, a finding must be made by the approving agency, whether the local government or the Coastal Commission on appeal, that the development is in conformity with the public access and public recreation policies of Chapter 3 of the Coastal Act. The only persons qualified to testify before the Commission at the “substantial issue” stage of the appeal process are the applicant, persons who opposed the application before the local government (or their representatives), and the local government. Testimony from other persons must be submitted in writing. At the time of the de novo portion of the hearing, any person may testify. IV. Staff Recommendation On Substantial Issue. The staff recommends the Commission adopt the following resolution: MOTION: I move that the Commission determine that Appeal No. A-6- CII-10-043 raises NO substantial issue with respect to the grounds on which the appeal has been filed under § 30603 of the Coastal Act. STAFF RECOMMENDATION: Staff recommends a NO vote. Failure of this motion will result in a de novo hearing on the application, and adoption of the following resolution and findings. Passage of this motion will result in a finding of No Substantial Issue and the local action will become final and effective. The motion passes only by an affirmative vote of the majority of the appointed Commissioners present. RESOLUTION TO FIND SUBSTANTIAL ISSUE: The Commission hereby finds that Appeal No. A-6-CII-10-043 presents a substantial issue with respect to the grounds on which the appeal has been filed under § 30603 of the Coastal Act regarding consistency with the Certified Local Coastal Plan and/or the public access and recreation policies of the Coastal Act. V. Findings and Declarations. The Commission finds and declares as follows: A-6-CII-10-043 Page 6 1. Project Description/History. The development being reviewed on appeal includes construction of a seawall originally approved by the City under an Emergency Coastal Development Permit (CDP). The follow-up CDP approved by the City includes the construction of a 97-foot long by 17 to 24-foot high bluff-colored and textured seawall anchored in place with tiebacks. Between the top of the seawall and the bluff top is a 1:1.5 fill slope, which has been landscaped to prevent erosion. The seawall is located on a beach highly utilized by the public and fronting 5323 and 5327 Carlsbad Boulevard, and the lots (1.01 acres) are currently developed with a single family detached residence on each. The seawall was determined to be necessary as a result of a previous bluff failure. On or about December 19, 2008, a 50 foot long by 32 foot high bluff failure occurred. An additional bluff failure occurred on December 30, 2008. A wave runup analysis submitted with the follow-up coastal development permit stated that as a result of the bluff failures the bluff retreated as much as five feet and deposited approximately 150 cubic yards of bluff material on the beach. The City of Carlsbad reviewed and approved an emergency coastal development on April 16, 2009. However, this permit expired due to failure to exercise and comply with all of the conditions of the permit. On June 10, 2009 the City of Carlsbad issued a second Emergency Coastal Development Permit (ref. City CDP 09-11) to allow for the construction of a seawall to prevent further bluff failures. This permit was released and the wall was completed on or about September 18, 2009. A decision by a local government to issue an emergency permit is not appealable to the Commission. The general topography of the site is a near vertical coastal bluff with a relatively flat area to the east, with elevations ranging from approximately 54 feet above mean sea level (MSL) in the east portion of the residential site to approximately 39 feet MSL at the western bluff top. West of the bluff and at the toe of the seawall there is a portion of beach described by the City as a “private beach” to approximately +6 feet MSL. However, the portion of the beach is not delineated as such, and the public utilizes all the beach west of the existing coastal bluff universally. West of this area of the beach there is a dedicated lateral public access way between 15- and 20-feet west of the seawall and approximately 15’ wide. This lateral access was required by the City associated with the previous subdivision of the lot. It is unclear, however, why the lateral access was required by the City at that specific location or for that specific width. The site is adjacent to single family homes to the north, Carlsbad Blvd. and single family homes to the east, and an improved concrete public access stairway from the bluff top to the beach to the south (ref. Exhibit #4). A highly utilized “pocket beach” and ocean are to the west. During higher tides, the dry sand available in the surrounding area is often limited to this pocket beach. Additionally, there is a good quality reef break west of the pocket beach. Given the combination of the improved public accessway, the pocket beach and the break, beach goers, surfers, families etc., visit this location on a regular basis. A-6-CII-10-043 Page 7 Site History There is extensive permit history for these sites. Between 1996 and the present, seven coastal development permits have been issued by the City at this location. In 1996, the City issued a permit for the construction of a public beach access stairway from the top of the coastal bluff to the beach (ref. Commission review No. 6-CII-97-084). This stairway was subsequently constructed and exists today. In 1998 the City issued a coastal development permit for the subdivision of the 1.6 acre lot into three single family lots (ref. Commission review No. 6-CII-00-044). It appears that a lateral access was required associated with this approval, and was recorded in 2000. Subsequently in 2000, the City issued permits for the construction of single family homes of two of the lots (ref. Commission review No. 6-CII-00-037/Jensen, 6-CII-00-038/Jensen). In 2001, the City approved the construction of the third home (ref. Commission review No. 6-CII-02-028). The geotechnical reports for these 3 homes found that the proposed setback for the homes would not be affected by the estimated maximum coastal bluff retreat rate during their economic lifetime (75 years). Specifically, the homes are setback 45’ from the bluff edge, and this setback was found to be adequate to assure safety of the homes (without construction of a shoreline protective device) for their estimated design life. No appeals were filed for any of the above described City-issued permits. The local government reviewed and approved an emergency permit for the project on April 16, 2009. This permit expired on May 16, 2009 due to a failure to exercise and comply with all of the conditions of the permit. On June 10, 2009 the Planning Director issued another Emergency Coastal Development, and sent a Notice of Final Action to the Commission’s San Diego District Office (ref. Commission review No. 6-CII-09-060). After reviewing the NOFA, Commission staff sent a letter to the property owners and the City, informing them that the work being approved under emergency, may be: 1) only temporary until a follow up regular coastal development permit is approved; 2) the project may be located within the Coastal Commission’s original jurisdiction; 3) the work may not be able to be found consistent with the City’s LCP; and, thus, 4) given these circumstances the property owner may be required to alter or remove such development. 2. Shoreline Development/Hazards. The appellants contend that the City’s approval of the proposed new seawall on the subject site is inconsistent with the City’s certified LCP as it pertains to shoreline development/hazards. Because the construction of a seawall has innate impacts to shoreline processes and sand supply, the City’s LCP limits and stringently evaluates the proposal for any new shoreline protective device. The Mello II LUP contains policies that address bluff preservation. Policy 4-1 is most applicable and provides: Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported A-6-CII-10-043 Page 8 sand. Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted structures shall be required to provide public access. […] (d) Undevelopable Shoreline Features No development shall be permitted on any sand or rock beach or on the face of any ocean bluff, with the exception of accessways to provide public beach access and of limited public recreation facilities. The City of Carlsbad also certified a Coastal Shoreline Development Overlay Zone as a component of its LCP. This overlay has two policies pertaining to the subject appeal and state in part: 21.204.030 - Permitted beach uses. Permitted uses and developments are limited to the following uses and require a coastal development permit according to the requirements of this zone: A. Steps and stairways for access from the top of the bluff to the beach. B. Toilet and bath houses. C. Parking lots, only if identified as an appropriate use in the local coastal program Mello II Segment land use plan; (see Policy 2-3). D. Temporary refreshment stands, having no seating facilities within the structure. E. Concession stands for the rental of surfboards, air mattresses and other sports equipment for use in the water or on the beach. F. Lifeguard towers and stations and other lifesaving and security facilities. G. Fire rings and similar picnic facilities. H. Trash containers. I. Beach shelters. 21.204.040 - Conditional beach uses. A. Uses substantially similar to the permitted uses listed above may be permitted on the beach subject to this chapter and Chapters 21.42 and 21.50 B. Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted shoreline A-6-CII-10-043 Page 9 structures shall be required to provide public access. Projects which create dredge spoils shall be required to deposit such spoils on the beaches if the material is suitable for sand replenishment. Seawalls shall be constructed essentially parallel to the base of the bluff and shall not obstruct or interfere with the passage of people along the beach at any time. [emphasis added] Section 21.204.110 – Geotechnical reports. A. Geotechnical reports shall be submitted to the planning director as part of an application for plan approval. Geotechnical reports shall be prepared and signed by a professional civil engineer with expertise in soils and foundation engineering, and a certified engineering geologist or a registered geologist with a background in engineering applications. The report document shall consist of a single report, or separate but coordinated reports. The document should be based on an onsite inspection in addition to a review of the general character of the area and it shall contain a certification that the development as proposed will have no adverse effect on the stability of the bluff and will not endanger life or property, and professional opinions stating the following: 1. The area covered in the report is sufficient to demonstrate the geotechnical hazards of the site consistent with the geologic, seismic, hydrologic and soil conditions at the site; 2. The extent of potential damage that might be incurred by the development during all foreseeable normal and unusual conditions, including ground saturation and shaking caused by the maximum credible earthquake; 3. The effect the project could have on the stability of the bluff. B. At a minimum the geotechnical report(s) shall consider, describe and analyze the following: 1. Cliff geometry and site topography, extending the surveying work beyond the site as needed to depict unusual geomorphic conditions that might affect the site. 2. Historic, current and foreseeable cliff erosion including investigation of recorded land surveys and tax assessment records in addition to the use of historic maps and photographs where available and possible changes in shore configuration and sand transport. […] 14. The effect the project could have on the stability of the bluff. 15. Mitigating measures and alternative solutions for any potential impact. [emphasis added] A-6-CII-10-043 Page 10 The report shall also express a professional opinion as to whether the project can be designed or located so that it will neither be subject to nor contribute to significant geologic instability throughout the lifespan of the project. The report shall use a currently acceptable engineering stability analysis method, shall describe the degree of uncertainty of analytical results due to assumptions and unknowns, and at a minimum, shall cover an area from the toe of the bluff inland to a line described on the bluff top by the intersection of a plane inclined at a twenty-degree angle from horizontal passing through the toe of the bluff or fifty feet inland from the bluff edge, whichever is greater. The degree of analysis required shall be appropriate to the degree of potential risk presented by the site and the proposed project. If the report does not conclude that the project can be designed and the site be found to be geologically stable, no coastal shoreline development permit shall be issued. The appellants’ primary contention is that the justification used for approval of the seawall is inconsistent with the City’s LCP. Specifically, the City found that the construction of a seawall is consistent with its certified LCP because it would provide protection to a “public beach in danger of erosion.” This language, contained in both the City’s LCP and the Coastal Act, has historically been interpreted to include shoreline protective devices such as groins, breakwaters, or jetties constructed to protect large-scale beaches from erosion as a result of natural sand migration via ocean currents, specific geographic features, etc. Additionally, the Commission has interpreted the above sections taken together to mean that when reviewing shoreline protective devices for coastal bluffs fronting residentially located lots, such devices are only required when they are designed to protect existing primary structures like an existing home, but not to prevent naturally occurring bluff erosion from depositing bluff material on public beaches. The bluff stability for this region in Carlsbad has been well documented over time. One such report is the 1985 California Coastal Commission Meeting Publication at San Diego. This, combined with the various geotechnical reports submitted over time, for various developments in the area, allows the Commission to estimate an average rates of retreat. The Commission’s 1985 report was based on the time interval of about 50 to 75 years and confirmed that the overall rate of retreat for both upper and lower parts of the bluff at this location was 1 to 3 inches per year. The studies also confirmed that this rate tended to decrease slightly in areas after episodic rapid erosion and/or retreat. These reports also indicated that there was a previous episodic erosion occurrence between 1977 and 1983. The combination of the slow gradual and episodic retreat extrapolates out to a 75 year rate of retreat of about 6 to 19 feet. As such, the homes can still be found adequately setback from the bluff edge, without relying on protective devices, for the remainder of their expected life. Additionally, an interpretation allowing for construction of a seawall solely to protect a public beach area from bluff instability and erosion would set a significant precedent. Bluff erosion is a common and natural process for the majority of California’s coastal bluffs. In fact, such failures are an important method for sand to be supplied to beaches A-6-CII-10-043 Page 11 so that they do not erode away over time. If the City’s interpretation of the regulations pertaining to shoreline protective devices is upheld, any coastal bluff could be proposed for armoring, citing the same rationale. One of the primary objectives of the City’s Coastal Shoreline Development Zone (Section 21.204.010 of the zoning ordinance), and ultimately the Coastal Act, is to provide and promote the protection of coastal bluffs in their natural state. Again, if the City’s interpretation of its policies is accepted, all remaining natural coastal bluffs that are adjacent to a beach could be armored to protect the beach going public, which is inconsistent with the City’s LCP. As previously stated, the development is located within and thus subject to the City’s regulations contained within the Coastal Shoreline Development Overlay Zone. This overlay is intended to provide land use regulations along the Carlsbad shoreline including beaches, bluffs and the land area immediately landward. The purpose of the overlay zone is to ensure that the public’s interest in maintaining the shoreline as a unique recreational and scenic resource is adequately protected. The overlay contains a list of permitted uses within the Shoreline Development Overlay Zone, of these seawalls are not a permitted use; rather, seawalls are listed as a conditionally permitted use, subject to the regulations contained within that chapter. The language contained within the overlay mirrors the language of LUP Policy 4-1 and Coastal Act Policy 30235 identically. As such, as explained above, because the project is not consistent with LUP policy 4-1, it is also not consistent with Zoning Ordinance Section 21.204.040. Therefore, the appellants have raised a substantial issue regarding the conformity of the development with the policies of the certified LCP. Because the project cannot be considered for approval through the City’s LCP policy 4-1 and cannot be considered a permitted use through Zoning Ordinance 21.204.040 (which requires that the City approve a seawall when necessary to protect existing development), the City is not required to approve the seawall. Instead, the City can still approve a seawall but only if it can be found consistent with all other sections of the City’s LCP, and the applicable policies of the Coastal Act. The seawall must be found consistent with these policies, including designing the seawall in the appropriate and least environmentally damaging feasible alternative, mitigating for all unavoidable impacts, prohibiting development on the face of a bluff, requiring the minimization/mitigation of impacts to local sand supply, and the inclusion of new lateral public accessways associated with developments such as seawalls. To this end, the appellants’ contend that the approved of the seawall is inconsistent with the City’s LCP in that it is not the least environmentally damaging feasible alternative, adequate mitigation has not been provided for all unavoidable impacts, and the approval will have a significant adverse effect on the shoreline sand supply and the stability of the bluff system, and, therefore, it is inconsistent with the City’s LCP. Alterative Design Options Regarding finding the least damaging alternative, the City’s staff report indicates that two alternative designs were analyzed. While review of such alternative designs could be sufficient to comply with the City’s LCP, no technical reports were included in this A-6-CII-10-043 Page 12 analysis, and in fact, no geotechnical reports were provided at the time the emergency permit application was considered. The result of this being that no technical evaluation could have been analyzed prior to issuance of the permit, so no alternatives could have been adequately analyzed nor could the City determined whether the seawall was even necessary. The two alternatives discussed in the City’s staff report included a rock revetment and the placing of geotextile bags filled with sand and stacked similar to a revetment. However, both of these alternatives were eliminated because they would not eliminate the hazard of bluff failure on the upper bluff portion, would require additional maintenance, and would occupy more of the useable beach area. However, again, no technical alternative designs for the seawall were included, nor was a no project alternative considered. Therefore, there may be alternative designs that could maintain the natural shoreline features and processes, and include all potential mitigating measures for any potential impact. Because the City failed to require or analyze adequate alternatives, the project, as approved by the City, cannot be found consistent with the City’s LCP. Therefore, the appellants have raised a substantial issue regarding the conformity of the development with the policies of the certified LCP. Impacts to Sand Supply The appellants contend that the seawall will have several adverse impacts to sand supply. Specifically, the appellants contend that the natural shoreline processes, such as the formation and retention of sandy beaches will be altered by construction of a seawall, especially given that bluff retreat is one of the ways that beach areas and beach quality sand is added to these types of shorelines. Generally speaking, this retreat is a natural process resulting from many different factors, such as erosion by wave action and eventual collapse, saturation of the bluff soil from ground water causing the bluff to slough off, and natural bluff deterioration from wind and rain. When a seawall is constructed on the beach at the toe of the bluff, these natural processes are impeded and may result in scour, end effects and modification of the beach profile. An additional concern is that passive erosion will no longer occur once a hard structure is built along a shoreline undergoing long-term net erosion. The structure fixes the back of the beach and stops the landward migration of the beach in front of the seawall. This results in the gradual loss of beach in front of the seawall. In looking at the properties to the north of this site, many of which already have shoreline protective devices, the majority of the armored properties do not have any beach area available during medium or high tides. Whereas the coastal bluff at this location is located further landward than neighboring bluffs and has a wide sandy beach west of the bluff. It appears that the lack of armoring, combined with natural processes, has resulted in the retention of this wide sandy area, and therefore this area may be available to beach goers during all but the highest tides. At any rate, the construction of the seawall will result in some impacts to shoreline sand supply. These impacts should first be eliminated to the maximum extent practicable and the remaining impacts mitigated appropriately. The City included some mitigation requirements for the impacts of the seawall on local shoreline sand supply. However, the appellants contend that the mitigation required by the City is not sufficient to offset the impacts of the seawall. As proposed, the applicant A-6-CII-10-043 Page 13 will pay a sand mitigation fee in the amount of $2,469.00. This amount is based on an erosion rate of 0.16ft/year, and a sand fee of $3.00 per cubic yards. The erosion rate of 0.16 was obtained by first determining an erosion rate of 0.05 ft/yr by combining a zero foot erosion from 1890 to present (based on a USGS report), plus 6 feet of erosion that occurred in 2008 (6/120 = 0.05 feet/yr) and averaged it with the Coastal Commission’s erosion rate used for other recent project (0.27 ft/year). Commission technical staff has reviewed this calculation and has indicated that the USGS report used to determine the zero foot erosion rate should not be included in this calculation because the report was not undertaken at a scale that can appropriately determine individual parcel erosion rates. Therefore, taking the average among the USGS report, the bluff failure in 2008, and the Commission’s recently accepted erosion rates for the region to determine the final erosion rate for the property is both arbitrary and unsupported by the evidence. Thus, the erosion rate of 0.16 ft/yr utilized by the City is not accurate. The appellants further contend that the cost of sand supported by the City is not adequate. The City approved the sand mitigation fee calculations using $3.00 per cubic yard. The sand fee was determined by the applicant using San Diego Association of Government’s (SANDAG) sand fee for regional, large-scale sand replenishment programs. Using this sand fee is not appropriate in that not all nourishment occurs on large-scale projects, and; if replenishment of this site was included in a region sand replenishment effort, the estimate would also have to factor in the $1,000,000 for mobilization/demobilization of the equipment necessary for sand replenishment projects. The result of using this arbitrarily low figure to calculate the cost of sand results in a mitigation payment that is not adequate to mitigate for the impacts to shoreline supply associated with the construction of the seawall. As a comparison, in 2008, the Commission approved a revetment on de novo review in the City of Carlsbad, which required a mitigation fee of $29,027.63 for a 63-foot long revetment and cited the cost of sand at $18.23 per cubic yard (ref. CDP A-6-CII-08-028). The Commission’s coastal engineer reviewed the calculations and agrees that the price of sand utilized by the City in this case is not adequate or realistic. As such, the City approved an unsupported erosion rate and an insufficient cost of sand, therefore resulting in an inadequate sand mitigation fee, inconsistent with the City’s LCP, and therefore, has raised a substantial issue regarding the contentions raised by the appellants. An additional contention raised by the appellants relates to further impacts associated with shoreline sand supply. Specifically, and, as previously discussed, the construction of a seawall on an eroding shoreline will result in loss of beach in front of the seawall. The appellants contend that the City failed to identify and mitigate for the impacts to the marine organisms that either live, breed or forage in these sand beach areas. It has been found that the loss of beach associated with the construction of coastal armoring results in a reduction of biodiversity, abundance of species, and prey for shorebirds. In addition, the sandy beach area also provides habitat for several species of fish, such as the California grunion, among others, that lay their eggs in this region of the beach. Beach wrack (stands of decomposing seaweed stranded on the sandy beach during high tides) is another key resource for beach invertebrates and the loss of this habitat zone due to armoring likely results in a significant reduction of intertidal diversity and alteration of A-6-CII-10-043 Page 14 community structure and function (ref. Exhibit #5). The City failed to include any discussion regarding these impacts, alternatives to minimize such impacts, or mitigation for such impacts inconsistent with the City’s LCP, and therefore, the appeal raises a substantial issue regarding the project’s consistency with the City’s LCP. 3. Development of the Bluff Face. The appellants contend that the project as approved by the City is inconsistent with the City of Carlsbad’s certified LCP regarding development on the bluff face. Specifically the appellants contend that the City has approved a permanent structure on the bluff face, which includes grading and fill on the actual bluff face. Substantial grading and development on a coastal bluff face is not permitted by the City’s LCP. Section 21.204.050 of the Coastal Shoreline Development Overlay Zone and policies of the Mello II LCP state: Mello II LUP Policy 4-1(d): No development shall be permitted on sand or rock beach or on the face of any ocean bluff, with the exception of access ways to provide public beach access and of limited public recreational facilities. Section 21.204.050 of the Coastal Shoreline Development Overlay Zone provides: a. Grading and Excavation - Grading and excavation shall be the minimum necessary (emphasis added) to complete the proposed development consistent with the provisions of this zone and the following requirements: 2) No excavation, grading or deposit of natural materials shall be permitted on the beach or the face of the bluff except to the extent necessary to accomplish construction pursuant to this section. The appellants contend that the seawall will require a significant amount of grading on a coastal bluff, inconsistent with the City’s LCP. Development on coastal bluffs can result in impacts, such as degradation and instability of the bluff. As described above, the City’s LCP limits development on a coastal bluff to accessways to provide public beach access and limited public recreational facilities. Additionally, the Commission has interpreted the above stated City of Carlsbad LCP policies to mean that only at-grade structures are permitted on a bluff face, which do not require grading. The Commission has found that “the minimum necessary” for new development on the bluff face means at-grade and ephemeral structures that do not require excavation which results in more permanent developments. In this case the City approved grading of a coastal bluff for a shoreline protective device. As proposed, the seawall will require substantial grading and subsequent back fill of the coastal bluff (ref. Exhibit #2), and, as such, raises a substantial issue on the grounds raised by the appellants. 4. Public Access. The public access and recreation policies of the Coastal Act are applicable because the proposed development is located between the sea and the first public road. Section 30604(c) requires that a specific access finding be made. In A-6-CII-10-043 Page 15 addition, the City’s LCP contains numerous policies protecting public access to and along the beach and state in part: Carlsbad’s certified Mello II LCP Policy 7-2 states: The Coastal Conservancy and the California State Department of Transportation (CALTRANS) have undertaken a comprehensive program designed to provide appropriate signs designating the shore access points. It is recommended that they identify the existing access points in the Carlsbad coastal zone, and upon approval of future sites of access it is recommended that these also be identified with signs. Carlsbad’s certified Mello II LCP Policy 7-3 states: The city will cooperate with the state to ensure that lateral beach access is protected and enhanced to the maximum degree feasible, and will continue to formalize shoreline prescriptive rights…….. The “Coastal Shoreline Development Overlay Zone”, an implementing measure of Carlsbad’s LCP - Section 21.204.110 4b states: Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted structures shall be required to provide public access. [emphasis added] The “Coastal Shoreline Development Overlay Zone”, an implementing measure of Carlsbad’s LCP - Section 21.204.060 - Requirements for public access – states: One or more of the following types of public access shall be required as a condition of development: A. Lateral Public Access. 1. Minimum Requirements. Developments shall be conditioned to provide the public with the right of access to a minimum of twenty-five feet of dry sandy beach at all times of the year. The minimum requirement applies to all new developments proposed along the shoreline requiring any type of local permit including a building permit, minor land division or any other type of discretionary or nondiscretionary action. A-6-CII-10-043 Page 16 2. Additional Requirements. New developments as specified below shall be conditioned to provide the public with lateral public access in addition to minimum requirements. a. Applicability (1) Seawalls and other shoreline protective devices. […] b. Required Standards. In determining the amount and type of additional lateral public access to be required (e.g., area for additional parking facilities, construction of improvements to be made available to the public, increased dry sandy beach area, or type of use of the dry sandy beach) the city shall make findings of fact considering all of the following: (1) The extent to which the development itself creates physical and visual impediments to public access which has not been mitigated through revisions in design or plan changes. (2) The extent to which the development discourages the public from visiting the shoreline because of the physical and visual proximity of the development to the shoreline. (3) The extent to which the development burdens existing road capacity and on street parking areas thereby making it more difficult to gain access to and use of the coast by further congesting access roads and other existing public facilities such as beaches, parks and road or sewer capacities. (4) The extent to which the development increases the intensity of use of existing beach and upland areas, thereby congesting current support facilities. (5) The potential for physically impacting beach and other recreational areas inherent in the project affecting shoreline wave and sand movement processes. [emphasis added] B. Bluff Top Access 1. Minimum requirements. Development adjacent to a shorefront bluff top lot where no beach exists or where beach is inaccessible because stairways have not or cannot be provided, shall be conditioned to provide the public with the right of access of at least twenty-five feet along the current bluff edge for coastal scenic access to the shoreline. The minimum requirements applies to all new developments proposed on bluff tops along the shoreline requiring any type of local permit including a building permit, a minor subdivision permit or any other type of discretionary or non-discretionary action. A-6-CII-10-043 Page 17 Sections 30210, 30211 and 30212(a) of the Coastal Act state: Section 30210: In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse. Section 30211: Development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation. Section 30212(a): Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects… The appellants contend that the City’s approval of the seawall is also inconsistent with its LCP in that the construction of the seawall will result in impacts to public access and that no mitigation for impacts of the seawall on public recreation were identified or required. The City’s approval concluded that because the seawall would be located essentially parallel and at the toe of the existing bluff, it would not result in any impacts to public recreation opportunities. However, this determination is not accurate. The project site is located on a beach that is utilized by local residents and visitors for a variety of recreational activities such as swimming, surfing, jogging, walking, surf fishing, beachcombing and sunbathing. In addition, the site is located directly adjacent to a public access stairway. The proposed seawall, which will be 97 ft.-long and 1 ft. wide will be constructed on sandy beach area that might be used by the public, and, therefore, the seawall will have both immediate and long-term adverse impacts on public access and recreational opportunities. The constructed portion of the proposed seawall will extend approximately 1 ft. seaward of the toe of the bluff. In addition, the seawall also proposes coloring and texturing of the seawall to match the existing bluff. However, the exact amount of beach the texturing will occupy has not been documented. It is important to note that the beach along this area of the coast is narrow, and at high tides and winter beach profiles, the public may be forced to walk virtually at the toe of the bluff or the area could be impassable. As such, an encroachment of any amount, especially a minimum of 1 ft. for a length of 97 feet, onto the sandy beach reduces the small beach area available for public use and is therefore a significant adverse impact. This is particularly true given the existing beach profiles and relatively narrow beach where access is sometimes only available at low tides. In addition, however, were it not for the seawall, the seaward face of the bluff would naturally recede, making additional beach area potentially available for public use. During the life of the seawall, as the beach area available to the public is reduced, dry sandy beach will become less available seaward of the seawall such that beachgoers will not want to sit or lay a towel in this area. This process will be further exacerbated with A-6-CII-10-043 Page 18 sea level rise. The City failed to identify, minimize or mitigate for any of these factors when considering the impacts to public recreation on an existing and highly used beach, inconsistent with the City’s LCP. One reason that the City failed to require appropriate mitigation for the public access impacts of this seawall is that it found that a portion of the beach westward of the seawall is private property. There is an existing public access easement over a portion of this area, however, and there is some evidence that there may have been an implied dedication of this beach area to the public through the public’s long-time use of this beach. In addition, there are times when the mean high tide line is at least close to the toe of this bluff, if not at the toe of the bluff, making the area seaward of the bluff potentially open to the public trustopen to public access at least some of the time. Thus, public access will be adversely impacted by this seawall, even if the wall is located in an area that may be considered to be private property, at least some of the time. The appellants also raised concerns regarding the lack of a lateral public access dedication. Section 21.204.060 (Coastal Shoreline Development Overlay Zone) of the City’s certified implementation plan requires that all shoreline developments provide the public with the right of access to a minimum of twenty-five feet of dry sandy beach at all times of the year. This section further states that additional lateral public access shall be required for the development of seawalls. However, the City failed to require any lateral access. The City’s staff report makes the following conclusion: The existing beach area is and has been subject to tidal action and does not provide twenty-five feet of dry sandy beach at all times of the year. The project is not able to increase the extent of the beach to provide a permanent twenty-five feet of dry sandy beach as area does not exist within the cove for the creation of such a beach that would not be susceptible to wash and erosion from wave action. Thus, the City has concluded that because there was not sufficient beach area available, no mitigation, in the form of an offer to dedicate a lateral accessway, needed to be provided. However, the City’s LCP states that if no beach exists, the project shall be conditioned to provide the public with a right of access of at least twenty-five feet along the current bluff edge. As stated above, the bluff top has previously been developed with two single family homes. The homes are, however, set back 45’ from the bluff edge, so providing access along the bluff top could be feasible. Further, if the case is that the combination of lack of beach and previous development has rendered it infeasible to provide the 25’ of lateral access, the required mitigation should not be eliminated; instead, opportunities for offsite mitigation, such as improved view points, stairways, etc. should be identified and required. It is important to note that the project site currently has an improved vertical accessway at the southern end of the site associated with a previously issued coastal development permit. That being said, mitigation associated with the impacts created by construction of the seawall should be required. The City not only failed to require the standard 25’ lateral access associated with all new developments, it also failed to provide the additional lateral access mitigation required associated with seawalls and specifically, and, lastly, it also failed to require any kind of A-6-CII-10-043 Page 19 replacement mitigation, and therefore, this raises a substantial issue of the project’s consistency with the certified LCP. 4. Conclusions. In conclusion, the City approved project is inconsistent with the City’s LCP for a number reasons including, that the seawall cannot be approved through the City’s LUP Policy 4-1, nor zoning ordinance 21.204.040 which only support the construction of shoreline protective devices for a limited number of circumstances. The project is further inconsistent with the City’s LCP in that the approval is not necessary to protect an existing structure or public beach in danger from erosion, and will facilitate grading of a coastal bluff, impact shoreline sand supply, change the profile of an existing highly-utilized “pocket beach”, will not provide mitigation for impacts to public access, and fails to eliminate all feasible and less damaging alternatives. Therefore, the Commission finds that the appeal does raise a substantial issue on the grounds presented by the appellants. I. STAFF RECOMMENDATION ON THE COASTAL PERMIT The staff recommends the Commission adopt the following resolution: MOTION: I move that the Commission approve Coastal Development Permit No. A-6-CII-10-043 for the development proposed by the applicant. STAFF RECOMMENDATION OF DENIAL: Staff recommends a NO vote. Failure of this motion will result in denial of the permit and adoption of the following resolution and findings. The motion passes only by affirmative vote of a majority of the Commissioners present. RESOLUTION TO DENY THE PERMIT: The Commission hereby denies a coastal development permit for the proposed development on the ground that the development will not be in conformity with the adopted Local Coastal Program and the public access and recreation policies of the Coastal Act. Approval of the permit would not comply with the California Environmental Quality Act because there are feasible mitigation measures or alternatives that would substantially lessen the significant adverse impacts of the development on the environment. II. Findings and Declarations.: The Commission finds and declares as follows: A-6-CII-10-043 Page 20 1. Project Description. The project description and history is described above under the substantial issue findings on Pages 5-7 of this report and is incorporated herein by reference. 2. Shoreline Development/Hazards. The Project as proposed includes the construction of a new 97’ long and 17-24’ tall textured and colored seawall. The City’s LCP contains policies addressing the construction of new shoreline protective devices. These policies state in part that: The Mello II LUP contains policies that address bluff preservation. Policy 4-1 provides: Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted structures shall be required to provide public access. […] (e) Undevelopable Shoreline Features No development shall be permitted on any sand or rock beach or on the face of any ocean bluff, with the exception of accessways to provide public beach access and of limited public recreation facilities. The City of Carlsbad also certified a Coastal Shoreline Development Overlay Zone as a component of its LCP; this overlay has two policies pertaining to the construction of seawalls and state in part: 21.204.030 - Permitted beach uses. Permitted uses and developments are limited to the following uses and require a coastal development permit according to the requirements of this zone: A. Steps and stairways for access from the top of the bluff to the beach. B. Toilet and bath houses. C. Parking lots, only if identified as an appropriate use in the local coastal program Mello II Segment land use plan; (see Policy 2-3). D. Temporary refreshment stands, having no seating facilities within the structure. E. Concession stands for the rental of surfboards, air mattresses and other sports equipment for use in the water or on the beach. F. Lifeguard towers and stations and other lifesaving and security facilities. A-6-CII-10-043 Page 21 G. Fire rings and similar picnic facilities. H. Trash containers. I. Beach shelters. 21.204.040 - Conditional beach uses. A. Uses substantially similar to the permitted uses listed above may be permitted on the beach subject to this chapter and Chapters 21.42 and 21.50 B. Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. Provisions for the maintenance of any permitted seawalls shall be included as a condition of project approval. As a further condition of approval, permitted shoreline structures shall be required to provide public access. Projects which create dredge spoils shall be required to deposit such spoils on the beaches if the material is suitable for sand replenishment. Seawalls shall be constructed essentially parallel to the base of the bluff and shall not obstruct or interfere with the passage of people along the beach at any time. [emphasis added] 21.204.110 – Geotechnical Reports A. Geotechnical reports shall be submitted to the planning director as part of an application for plan approval. Geotechnical reports shall be prepared and signed by a professional civil engineer with expertise in soils and foundation engineering, and a certified engineering geologist or a registered geologist with a background in engineering applications. The report document shall consist of a single report, or separate but coordinated reports. The document should be based on an onsite inspection in addition to a review of the general character of the area and it shall contain a certification that the development as proposed will have no adverse effect on the stability of the bluff and will not endanger life or property, and professional opinions stating the following: 1. The area covered in the report is sufficient to demonstrate the geotechnical hazards of the site consistent with the geologic, seismic, hydrologic and soil conditions at the site; 2. The extent of potential damage that might be incurred by the development during all foreseeable normal and unusual conditions, including ground saturation and shaking caused by the maximum credible earthquake; 3. The effect the project could have on the stability of the bluff. A-6-CII-10-043 Page 22 B. As a minimum the geotechnical report(s) shall consider, describe and analyze the following: 1. Cliff geometry and site topography, extending the surveying work beyond the site as needed to depict unusual geomorphic conditions that might affect the site. 2. Historic, current and foreseeable cliff erosion including investigation of recorded land surveys and tax assessment records in addition to the use of historic maps and photographs where available and possible changes in shore configuration and sand transport. […] 14. The effect the project could have on the stability of the bluff. 15. Mitigating measures and alternative solutions for any potential impact. [emphasis added] The report shall also express a professional opinion as to whether the project can be designed or located so that it will neither be subject to nor contribute to significant geologic instability throughout the lifespan of the project. The report shall use a currently acceptable engineering stability analysis method, shall describe the degree of uncertainty of analytical results due to assumptions and unknowns, and at a minimum, shall cover an area from the toe of the bluff inland to a line described on the bluff top by the intersection of a plane inclined at a twenty-degree angle from horizontal passing through the toe of the bluff or fifty feet inland from the bluff edge, whichever is greater. The degree of analysis required shall be appropriate to the degree of potential risk presented by the site and the proposed project. If the report does not conclude that the project can be designed and the site be found to be geologically stable, no coastal shoreline development permit shall be issued. The primary concern regarding the proposal for construction of a seawall at this location is the purpose for which the seawall is proposed. Specifically, the construction of the seawall has been proposed to provide protection to a “public beach in danger of erosion.” This language, contained in both the City’s LCP and the Coastal Act, has historically been interpreted to include shoreline protective devices such as groins, breakwaters, or jetties constructed to protect large-scale beaches from erosion as a result of natural sand migration via ocean currents, specific geographic features, etc. Additionally, the Commission has interpreted the above sections of the City’s LCP taken together to mean that when reviewing coastal bluffs fronting residentially located lots, shoreline protective devices are permissible to protect existing primary structures like an existing home, but not to prevent naturally occurring bluff erosion from depositing bluff material on public beaches. A-6-CII-10-043 Page 23 The bluff stability for this region in Carlsbad has been very well documented over time. One such report is the 1985 California Coastal Commission Meeting Publication at San Diego. This, combined with the various geotechnical reports submitted with various developments in the area, allows the Commission to estimate an average rate of retreat. The Commission’s 1985 report was based on the time interval of about 50 to 75 years and confirmed that the overall rate of retreat for both upper and lower parts of the bluff was 1 to 3 inches per year. The studies also confirmed that this rate tended to decrease slightly in areas after episodic rapid erosion and/or retreat. These reports also indicated that there was a previous episodic erosion occurrence between 1977 and 1983. The combination of the slow gradual and episodic retreat extrapolates out to a 75 year rate of retreat of about 6 to 19 feet. As such, the homes can still be found adequately setback from the bluff edge without needing protective devices for the remainder of their expected life. Additionally, an interpretation allowing for construction of a seawall solely to protect a public beach area from bluff instability and erosion would set a significant precedent. Bluff erosion is a common and natural process for the majority of California’s coastal bluffs. In fact, such failures are an important method for sand to be supplied to beaches so that they do not erode away over time. If the City’s interpretation of the regulations pertaining to shoreline protective devices is upheld, any coastal bluff could be proposed for armoring citing the same rationale. One of the primary objectives of the City’s Coastal Shoreline Development Zone (Section 21.204.010 of the zoning ordinance), and ultimately the Coastal Act is to provide and promote the protection of coastal bluffs in their natural state. Again, if the City’s interpretation of its policies was accepted, all remaining natural coastal bluffs that are adjacent to a beach could be armored, which is not only inconsistent, but in direct conflict with the City’s LCP. As previously stated, the development is located within and thus subject to the City’s regulations contained within the Coastal Shoreline Development Overlay Zone. This overlay is intended to provide land use regulations along the Carlsbad shoreline including beaches, bluffs and the land area immediately landward. The purpose of the overlay zone is to ensure that the public’s interest in maintaining the shoreline as a unique recreational and scenic resource is adequately protected. The overlay contains a list of permitted uses within the Shoreline Development Overlay Zone, of these seawalls are not a permitted use; rather, seawalls are listed as a conditionally permitted use, and shall be permitted only with the regulations contained within that chapter. The language contained within the overlay mirrors the language of LUP Policy 4-1 and Coastal Act Policy 30235 identically. As such, as explained above, because the project cannot be considered for approval through LUP policy 4-1, it also cannot be found as a permitted use through Zoning Ordinance Section 21.204.040. Because the project cannot be approved through the City’s LCP policy 4-1 and cannot be considered a permitted use through Zoning Ordinance 21.204.040 (which requires that the City approve a seawall when necessary to protect existing development), the project must be reviewed for consistency with all other sections of the City’s LCP, and the applicable policies of the Coastal Act. The seawall must be found consistent with these A-6-CII-10-043 Page 24 policies, including designing the seawall in the appropriate and least environmentally damaging feasible alternative, mitigating for all unavoidable impacts, prohibiting development on the face of a bluff, requiring the minimization/mitigation of impacts to local sand supply, and the inclusion of new lateral public accessways associated with developments such as seawalls. The project as proposed cannot be found consistent with these policies in that it is not the least environmentally damaging feasible alternative, adequate mitigation has not been provided for all unavoidable impacts, and the approval will have a significant adverse effect on the shoreline sand supply and the stability of the bluff system, and, therefore, it is inconsistent with the City’s LCP. The above mentioned impacts are reviewed in greater detail below. Alterative Design Options Regarding finding the least damaging alternative, the seawall proposal included no formal review of alternatives. The City of Carlsbad informally described two alternative designs, but no technical alternatives to the seawall design were provided by the applicant. In addition, no geotechnical analysis was submitted prior to issuance of the permit. Therefore, it is unclear if the seawall is necessary, or if there are alternative, less damaging project designs. The two alternatives discussed by the City’s include a rock revetment and the placing of geotextile bags filled with sand and stacked similar to a revetment. Both of these alternatives were eliminated because they would not eliminate the hazard of bluff failure on the upper bluff portion, would require additional maintenance, and would occupy more of the useable beach area. However, again, no technical alternative designs for the seawall were included, nor was a no project alternative considered. Therefore, potential alternatives designs could maintain the natural shoreline features and processes and have fewer environmental impacts. Because the proposed project does not include an adequate alternatives analysis, it is not clear that the approved project is the least environmentally damaging feasible alternative. As such, the project cannot be found consistent with the City’s LCP and shall be denied. Impacts to Sand Supply The proposed seawall will have several adverse impacts to sand supply. Specifically, several natural shoreline processes, such as the formation and retention of sandy beaches, can be altered by construction of a seawall, given that bluff retreat is one of the ways that beach areas and beach quality sand are added to the shoreline. Generally speaking, this retreat is a natural process resulting from many different factors, such as erosion by wave action and eventual collapse, saturation of the bluff soil from ground water causing the bluff to slough off, and natural bluff deterioration from wind and rain. When a seawall is constructed on the beach at the toe of a bluff, these natural processes are impeded and may result in scour and modification of the beach profile. An additional concern, passive erosion, will no longer occur when a hard structure is built along a shoreline undergoing long-term net erosion. The structure fixes the back of the beach and stops the landward migration of the beach in front of the seawall. This results in the gradual loss of beach in front of the seawall. In looking at the properties to the north of this site, many of which already have shoreline protective devices, the majority of the armored properties do not A-6-CII-10-043 Page 25 have any beach area available during medium or high tides. Whereas, the coastal bluff at this location is located further landward, and has a wide sandy beach west of the bluff. It appears that the lack of armoring, combined with natural processes, has resulted in the wide sandy area, and therefore, this area may be available to beach goers during all but the highest tides. At any rate, the construction of the seawall will result in some impacts to shoreline sand supply. These impacts should first be eliminated to the maximum extend practicable and the remaining impacts mitigated appropriately. As discussed above, the project cannot be permitted through LUP policies 4-1, or zoning ordinance 21.204. 040 and did not include an adequate alternatives analysis, inconsistent with the City’s LCP. The applicant is proposing some mitigation for these impacts of the seawall on local shoreline sand supply. However, the mitigation proposed is not sufficient to offset the impacts of the seawall. As proposed, the applicant will pay a sand mitigation fee in the amount of $2,469.00. This amount is based on an erosion rate of 0.16ft/year, and a sand fee of $3.00 per cubic yard. The erosion rate of 0.16 was obtained by first determining an erosion rate of 0.05 ft/yr by combining a zero foot erosion from 1890 to present (based on a USGS report), plus 6 feet of erosion that occurred in 2008 (6/120 = 0.05 feet/yr) and averaged it with the Coastal Commission’s erosion rate used for other recent projects (0.27 ft/year). Commission technical staff has reviewed this calculation and has indicated that the USGS report used to determine the zero foot erosion rate should not be included in this calculation because the report was not undertaken at a scale that can appropriately determine individual parcel erosion rates. Therefore, taking the average among the USGS report, the bluff failure in 2008, and the Commission’s recently accepted erosion rates for the region to determine the final erosion rate for the property is both arbitrary and unsupported by the evidence. Thus, the erosion rate of 0.16 ft/yr utilized by the City cannot be considered accurate and cannot be found consistent with the City’s LCP. Additionally, the proposed sand supply mitigation includes the cost of sand for sand replenishment at $3.00 per cubic yard. The applicant did not present sufficient evidence to support such a low figure for the cost of sand, which is typically closer to $18 per cubic yard. The sand fee was determined by the applicant using San Diego Association of Government’s (SANDAG) sand fee for regional, large-scale sand replenishment programs. Using this sand fee is not appropriate in that not all nourishment occurs on large-scale projects, and; if replenishment of this site was included in a region sand replenishment effort, the estimate would also have to factor in the $1,000,000 for mobilization/demobilization of the equipment necessary for sand replenishment projects. The result of using this arbitrarily low figure for the cost of sand replenishment results in inadequate mitigation for the impacts to shoreline supply associated with the construction of the seawall. As a comparison, in 2008, the Commission approved a revetment on de novo review in the City of Carlsbad, which included a mitigation fee of $29,027.63 for a 63-foot long revetment and cited the cost of sand at $18.23 per cubic yard (ref. CDP A-6- CII-08-028). The Commission’s coastal engineer reviewed the calculations used by the City and agrees that the price of sand is not adequate or realistic. As such, the proposed mitigation includes an unsupported erosion rate and an inaccurate cost for sand A-6-CII-10-043 Page 26 replenishment, therefore resulting in an inadequate sand mitigation fee, inconsistent with the City’s LCP, and therefore, the project shall be denied. An additional concern associated with the construction of the seawall is also is related to potential impacts to local shoreline sand supply. Specifically, and as previously discussed, the construction of a seawall on an eroding shoreline will result in loss of beach in front of the seawall. Not only is there value in the sand for recreational purposes, but also biological and ecological value. As proposed, impacts to the marine organisms that either live, breed or forage in these sand beach areas were neither discussed nor were impacts to these species mitigated. It has been found that the loss of beach associated with the construction of coastal armoring results in a reduction of biodiversity, abundance of species, and prey for shorebirds. In addition, the sandy beach area also provides habitat for several species of fish, such as the California grunion, among others, that lay their eggs in this region of the intertidal zone. Additionally, beach wrack (stands of decomposing seaweed stranded on the sandy beach during high tides) is another key resource for beach invertebrates and the animals that prey upon these invertebrates. The loss of this habitat zone due to armoring will likely result in significant reduction of intertidal diversity and will result in alteration of community structure and function (ref. Exhibit #5). Because the seawall will result in loss of sand supply, and thus impacts to marine resources, the project cannot be found consistent with the City’s LCP, and therefore, shall be denied. 3. Development of the Bluff Face. The construction of the seawall will require both grading and the placement of fill on a coastal bluff. Additionally, the construction of the seawall will result in a permanent structure on the bluff face. Substantial grading and permanent development on a coastal bluff face are not permitted by the City’s LCP provisions. Section 21.204.050 of the Coastal Shoreline Development Overlay Zone and policies of the Mello II LCP state: Mello II LUP Policy 4-1(d): No development shall be permitted on sand or rock beach or on the face of any ocean bluff, with the exception of access ways to provide public beach access and of limited public recreational facilities. Section 21.204.050 of the Coastal Shoreline Development Overlay Zone provides: b. Grading and Excavation - Grading and excavation shall be the minimum necessary (emphasis added) to complete the proposed development consistent with the provisions of this zone and the following requirements: 3) No excavation, grading or deposit of natural materials shall be permitted on the beach or the face of the bluff except to the extent necessary to accomplish construction pursuant to this section. A-6-CII-10-043 Page 27 As proposed, the construction of the seawall will require significant amounts of grading of a coastal bluff, inconsistent with the City’s LCP. Development on coastal bluffs can result in impacts such as degradation and instability of the bluff. As described above, the City’s LCP limits development on a coastal bluff to accessways to provide public beach access and limited public recreational facilities. The Commission has interpreted the above stated City of Carlsbad LCP policies to mean that only at-grade structures are permitted on a bluff face, which do not require grading. The Commission has found that “the minimum necessary” for new development on the bluff face means at-grade and ephemeral structures that do not require excavation which results in more permanent developments. As proposed, the seawall will require substantial grading and subsequent back fill of the coastal bluff (ref. Exhibit #2), and will be maintained as a permanent structure on the bluff face, and; as such, the proposal cannot be found consistent with the City’s LCP and shall be denied. 4. Public Access. In addition to the adverse impacts on local sand supply, shoreline protective devices also have significant adverse impacts to public access and recreation. The public access and recreation policies of the Coastal Act are applicable because the proposed development is located between the sea and the first public road. Section 30604(c) requires that a specific access finding be made. In addition, the City’s LCP contains numerous policies protecting public access to and along the beach and state in part: Carlsbad’s certified Mello II LCP Policy 7-2 states: The Coastal Conservancy and the California State Department of Transportation (CALTRANS) have undertaken a comprehensive program designed to provide appropriate signs designating the shore access points. It is recommended that they identify the existing access points in the Carlsbad coastal zone, and upon approval of future sites of access it is recommended that these also be identified with signs. Carlsbad’s certified Mello II LCP Policy 7-3 states: The city will cooperate with the state to ensure that lateral beach access is protected and enhanced to the maximum degree feasible, and will continue to formalize shoreline prescriptive rights…….. The “Coastal Shoreline Development Overlay Zone”, an implementing measure of Carlsbad’s LCP - Section 21.204.110 4b states: Revetments, breakwaters, groins, harbor channels, seawalls, cliff retaining walls, and other such construction that alters natural shoreline processes shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply. As a condition of approval, permitted shoreline structures may be required to replenish the beach with imported sand. Provisions for the maintenance of any permitted seawalls shall be included as A-6-CII-10-043 Page 28 a condition of project approval. As a further condition of approval, permitted structures shall be required to provide public access. [emphasis added] The “Coastal Shoreline Development Overlay Zone”, an implementing measure of Carlsbad’s LCP - Section 21.204.060 - Requirements for public access – states: One or more of the following types of public access shall be required as a condition of development: A. Lateral Public Access. 1. Minimum Requirements. Developments shall be conditioned to provide the public with the right of access to a minimum of twenty-five feet of dry sandy beach at all times of the year. The minimum requirement applies to all new developments proposed along the shoreline requiring any type of local permit including a building permit, minor land division or any other type of discretionary or nondiscretionary action. 2. Additional Requirements. New developments as specified below shall be conditioned to provide the public with lateral public access in addition to minimum requirements. a. Applicability (1) Seawalls and other shoreline protective devices. […] b. Required Standards. In determining the amount and type of additional lateral public access to be required (e.g., area for additional parking facilities, construction of improvements to be made available to the public, increased dry sandy beach area, or type of use of the dry sandy beach) the city shall make findings of fact considering all of the following: (1) The extent to which the development itself creates physical and visual impediments to public access which has not been mitigated through revisions in design or plan changes. (2) The extent to which the development discourages the public from visiting the shoreline because of the physical and visual proximity of the development to the shoreline. (3) The extent to which the development burdens existing road capacity and on street parking areas thereby making it more difficult to gain access to and use of the coast by further congesting access roads and other existing public facilities such as beaches, parks and road or sewer capacities. A-6-CII-10-043 Page 29 (4) The extent to which the development increases the intensity of use of existing beach and upland areas, thereby congesting current support facilities. (5) The potential for physically impacting beach and other recreational areas inherent in the project affecting shoreline wave and sand movement processes. [emphasis added] Sections 30210, 30211 and 30212(a) of the Coastal Act state: Section 30210: In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse. Section 30211: Development shall not interfere with the public's right of access to the sea where acquired through use or legislative authorization, including, but not limited to, the use of dry sand and rocky coastal beaches to the first line of terrestrial vegetation. Section 30212(a): Public access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects… The project site is located on a beach that is utilized by local residents and visitors for a variety of recreational activities, such as swimming, surfing, jogging, walking, surf fishing, beachcombing and sunbathing. The site is located directly adjacent to a public access stairway. The proposed seawall, which will be 97 ft. long and at least 1 ft. wide, will be constructed on sandy beach area that might otherwise be available for public use and, therefore, will have both immediate and long-term adverse impacts on public access and recreational opportunities. While the applicant claims that the seawall is located on private property, there is evidence that the public may have obtained rights to use this property through an implied dedication, at high tide much of the beach is inundated, and there is an existing lateral public accessway on a portion of the beach. Thus, the public does access this beach for recreational purposes (and the public’s use of the area near the bluff face was the basis for the City’s approval of the seawall). The proposed seawall will extend a minimum of 1 ft. seaward of the toe of the bluff. In addition, the beach along this area of the coast is narrow, and at high tides and winter beach profiles, the public may be forced to walk virtually at the toe of the bluff or the area could be impassable. As such, an encroachment of any amount especially 1 ft. for a length of 97 feet, onto the sandy beach reduces the small beach area available for public use and is therefore a significant adverse impact. In addition, were it not for the seawall and infill structure, the seaward face of the bluff would naturally recede, potentially making additional beach area available for public use. During the life of the seawall, as the beach area available to the public is reduced, dry sandy beach will become less A-6-CII-10-043 Page 30 available seaward of the seawall such that beachgoers will not want to sit or lay a towel in this area. Section 21.204.060 (Coastal Shoreline Development Overlay Zone) of City’s certified implementation plan requires that all developments provide the public with the right of access to a minimum of twenty-five feet of dry sandy beach at all times of the year. This section further states that additional lateral public access shall be required for the development of seawalls. However, no lateral access has been provided as proposed. While there is an opportunity for an additional public access easement area between the seawall and the existing lateral access easement, this mitigation alone is not sufficient to find the project consistent with the City’s LCP, and it therefore shall be denied. 5. Local Coastal Planning. Pursuant to Sections 30170(f) and 30171 of the Public Resources Code, the Commission prepared and approved two portions of the Carlsbad LCP, the Mello I and II segments in 1980 and 1981. However, the City of Carlsbad found several provisions of the Mello I and Mello II segments unacceptable and, therefore, did not adopt the LCP until 1997. In the intervening period, the Coastal Act was amended to include Section 30519.1 which specifies that for projects within the jurisdiction of the Mello I and Mello II segments of the LCP, coastal development permit applications are to be reviewed for their consistency with the certified local coastal program. The certified Carlsbad LCP Mello II segment contains a number of land use policies and is also subject to the Coastal Shoreline Development Overlay Zone, which has been discussed in this report. The purpose of this zone is, among other purposes, to provide regulations for development and land uses along the coastline in order to maintain the shoreline as a unique recreational and scenic resource, affording public safety and access, and to avoid the adverse geologic and economic effects of bluff erosion. The policies and ordinances of the City’s LCP contain detailed regulations regarding the construction of revetments, seawalls, cliff-retaining walls, and other similar shoreline structures. Specifically, the ordinance allows for the construction of seawalls only when they are required in order to serve coastal dependent uses or to protect existing structures or public beaches in danger from erosion. As noted, in this case, the seawall was not required to protect existing structures and the evidence did not support a finding that it was required to protect a beach that was in danger of eroding, therefore, the Commission finds that the project cannot be found consistent with the City’s certified Local Coastal Program. Therefore, the Commission finds that approval of the proposed development will prejudice the ability of the City to continue implementation of its certified LCP and as such, the project is denied. 6. California Environment Quality Act (CEQA). Section 13096 of the California Code of Regulations requires Commission approval of a coastal development permit to be supported by a finding showing the permit to be consistent with any applicable requirements of the California Environmental Quality Act (CEQA). Section 21080.5(d)(2)(A) of CEQA prohibits a proposed development from being approved if A-6-CII-10-043 Page 31 there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse effect which the activity may have on the environment. As stated previously, and incorporated herein by reference, the development as proposed is inconsistent with the Certified LCP policies pertaining to construction of shoreline protective devices, sand supply, public access, coastal views. The project as proposed includes development of a seawall for the purpose of protecting beachgoers from bluff failure. The Commission finds that there are other feasible alternatives available, including potential design alternatives to reduce impacts to the maximum degree feasible. In addition, the no “no project” alternative” is feasible in that the existing blufftop homes are not threatened. This would allow the bluff to continue to erode naturally. As such, there are feasible alternatives or mitigation measures available which would substantially decrease the significant adverse effects that the project would have on the environment. The proposed project therefore is not consistent with the requirements of the California Environmental Quality Act (CEQA) (Z:\San Diego\Reports\Appeals\2010\A-6-CII-10-043 Goetz.doc)