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Home My WebLink AboutCDP 09-13; Goetz Seawall; Coastal Development Permit (CDP) (2)CITY 0 F CELIA A. BREWER CITY ATTORNEY JANE MOBALDI ASSISTANT CITY ATIORNEY CARLSBAD May 15,2014 Deborah N. Lee District Manager California Coastal Commission San Diego Coast District 7575 Metropolitan Drive, Ste. 103 San Diego, CA 92108 PAUL G. EDMONSON ASSISTANT CITY ATTORNEY RONALD KEMP ASSISTANT CITY AlTORNEY RE: Appeal No. A-6-CJJ-10-043-Goetz Seawall, 5323-5327 Carlsbad Blvd. Dear Ms. Lee: This letter is in support of the City of Carlsbad's actions on the Goetz seawall project. The City initially acted on a request for an emergency coastal development permit from the homeowner, Mr. Goetz, to prevent the loss of life and protect the public using the public beach below his home. Three separate bluff failures were recorded in late 2008 and early 2009, one resulting in over 200 tons of bluff material falling onto a popular beach frequented by visitors and residents alike. Fortunately, no one was injured or killed by the bluff failures. The beach below the Goetz home is a small, pocket cove accessed by a public stairway installed by the original developer of the Goetz home and the two adjacent parcels. The cove is the result of an ancient creek bed that runs under the bluff in this location. People habitually congregate beneath the coastal bluff because the beach to the north and south is narrow and inaccessible during high tides. In addition, visitors and residents are attracted to the public beach because there is free parking, a public access stairway and great surf. «~~ www.carlsbadca.gov ~ 1200 Carlsbad Village Drive, Carlsbad, CA 92008-1949 T 760-434-2891 F 760-434-8367 ® Deborah N. Lee May 15, 2014 Page 2 Prior to issuing the emergency permit, the City conferred with Coastal Commission staff concerning jurisdiction for the emergency permit and the Coastal Commission declined jurisdiction over the permit. The City then acted upon the permit request in compliance with its approved Local Coastal Program, which includes its emergency permit ordinance (EPO} found in Carlsbad Municipal Code section 21.201.190. The EPO authorizes the City to grant an emergency permit to "prevent or mitigate loss or damage to life, health, property or essential public services." The EPO does not limit the projects or work that may be approved, nor does it prohibit approval of permanent measures to protect or mitigate loss or damage. Instead, it gives the City absolute discretion to grant a permit when prompt action is required, the comments are reviewed, and the proposed work is consistent with the requirements set forth in the Coastal Commission certified land use plan (LUP}. The LUP mirrors the provisions of the California Coastal Act with regard to the approval of a seawall or other types of coastal armoring. The LCP, like the Coastal Act, absolutely mandates issuance of a coastal development permit for a shoreline structure under three scenarios: when it is necessary to serve coastal dependent uses or to protect existing structures or beaches from erosion. Also like the Coastal Act, the certified LCP does not restrict the permitting of such development exclusively to those three scenarios. Had the Coastal Commission desired to restrict shoreline structure exclusively to the three scenarios where protection is mandated, it could easily have imposed such a restriction when it certified the LCP and the EPO, but the Commission did not do so. Thus, the City's determination that the LCP authorized it to approve a seawall when necessary to protect human life and health under the EPO was a valid exercise of its discretion consistent with the California Coastal Act and the LUP. The City acts under a broad mandate to protect public health and safety. In this case, the permit issuance was deemed necessary to protect the safety of large numbers of beachgoers from the danger of failing coastal bluffs. The City of Carlsbad places the highest priority on the protection of human life and the public health, safety, and welfare. The City required geotechnical reports with the application for the emergency permit. The applicant's geotechnical engineer, David Skelly, and other geotechnical experts provided reports which verified the necessity for the proposed seawall and its design. Other protective measures were reviewed by the City and discounted as inferior to the seawall design. This approach was confirmed by the City's peer review Deborah N. Lee May 15,2014 Page 3 consultant, Ninyo and Moore. These alternatives are discussed in the City's staff report dated April 7, 2010. The City did not have the luxury of time in 2010 to conduct lengthy studies and reviews to determine long term solutions to bluff failure. It relied upon the geotechnical experts' knowledge and analyses to determine the best solution to the imminent danger posed by the instability of the slope. The seawall was recommended as both the emergency and ultimate solution at that time. With regard to mitigation, the previous development permits for the subdivision of the properties required and secured, on June 30, 2000, the irrevocable offer of dedication of an easement for lateral beach access (enclosed herewith). The existing easement, roughly 90 feet of beach east of the mean high water line and 50 feet of beach east of the high tide line, is consistent with the Section 21.204.060 (Coastal Shoreline Development Overlay Zone-requirement for the development of seawalls) in that it provides lateral access in excess of 25 feet. The easterly boundary of the easement is located just westward of the bottom of the access stairway to the beach. There is roughly 20 to 30 feet of private beach between the easement and the base of the seawall. Although the area between the easement and the base of the bluff/seawall is not covered by the access easement, its use is unrestricted to the public and it is the only part of the beach accessible in this area during higher tides. This fact, along with the public stairway encouraging public use of this area of the beach, make this cove unique. Therefore approval of the seawall in this location would not necessarily set a precedent for authorizing seawalls elsewhere along the coastline. The lateral beach access easements recorded on the narrower beaches to the north where the easement runs closer to base of the bluff or other shore protection devices such as rip rap, do not allow a person to pass along the shoreline during high tides. The Coastal Commission draft staff report states that if 25 feet of dry sandy beach cannot be provided at all times, then a bluff top access easement shall be secured. In the past, the City has not been told that the previously dedicated 25 foot easements are unacceptable because the easement area will be inundated at times due to the changing tides. Nor has the Coastal Commission ever required bluff top easements for the issuance of coastal development permits in this area of the coastline when lateral access easements have been secured. For the above reasons, the City disagrees with the conclusion in the Coastal Commission's October 2011 draft staff report that the City's approval of the seawall was inconsistent with the City's LCP and the applicable provisions of the Coastal Act. The Deborah N. Lee May 15, 2014 Page 4 City has consistently acted with the best interests of the pubic in mind, in securing vertical and lateral beach access and in ensuring that the beach would be safe for use by the public. Ironically, had the City not acted to protect the beach-going public, the City may have been in the untenable position of having to restrict access to the beach in order to protect the public. The City and the Coastal Commission are absolutely aligned in a desire to provide beach access, the City must also assure that it is safe to use such accesses and beaches. Thank you for your consideration of these points. Sincerely, Celia A. Brewer City Attorney Enclosure -.- •' 2 3 4 { RECORDING REQUESTED BY AND RETURN TO; 6224 5 IRREVOCABLE OFFER TO DEDICATE LATERAL B!:ACH ACCESS EASEMENT 6 MD 1 DECLARATION OF RESTRICTIONS g 9 THIS IRREVOCABLE OFFER TO DEDICATE A LATERAL BEACH ACCESS 10 EASEMENT AND DECLARATION OF RESTRICTIONS (hereinafter referred to as the 'Offer") 11 is made tills 15 day of June, 2000, by Jon A. Jensen, an individual and owner of parcel 12 number 210-120-34; and Jon A. Jensen and Carol L. Jensen, Co-Trusllles of the Jensen 13 Family Trust UTD July 4, 1992, and owner of parcel number 210 -120 • 32; and Dean A. 14 Goetz and Barbara J. Goetz, Co-Trustees of the Dean A. Goetz and ·Barbara J. Goetz Trust 15 UTD September 21, 1989 and owner of parcel number 210-120-33; (hereinafter all collectively 16 referred to as the 'Grantor' or 'Grantors;. 17 I. WHEREAS, Grantors are the legal owner ol three separate fee interests of 18 certain real property as slilt forth herein located in the, City of Carlsbad, County of San Diego, 19 State of California, and described in the attached EXHIBIT "A" (hereinafter referred to as the 20 "Property"); and 21 11. WHEREAS, the Property subject to this Offer Is located within the coastal zone 22 as defined In §301 03 of the California Public Resources Code (also known as and referred to 23 as the 'California Coastal Act of 1976"); 24 Ill. WHEREAS, the California Coastal Act of 1976 creates the California Coaatal 25 Commission (also known as and referred to as the ·commission") and 26 IV. WHEREAS, the Grantors, as herein set forth, desire to provide an Offer for a 27 lateral beach access easement and declaration of restrictions. 28 NOW THEREFORE, and In and for the ·consideration as set forth herein and F.IOATAUV..SE,.\Cl•; O'I".IRR!VOCABLE_OFFEROi140Q:..,pd