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
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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:
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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
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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
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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:
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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.
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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
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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
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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]
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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:
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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.
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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(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
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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
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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)