More seawalls stuff

You can't legislate what city staff values. You can change policies and endorsed practices.


This is from a letter sent to City Manager Vina from the Coastal Environmental Rights Foundation.


Re: Notice of CEQA Violations: Pattern and Practice
Failure to Mitigate Impacts of Coastal Armoring

Dear Mr. Vina:
Please accept this letter on behalf of the Coastal Environmental Rights Foundation (CERF).
CERF is a nonprofit environmental organization founded by surfers in North San Diego County and
active throughout California’s coastal communities. CERF was established to aggressively advocate,
including through litigation, for the protection and enhancement of coastal natural resources and the
quality of life for coastal residents.

This correspondence serves two purposes. First, it is to put the City on notice that the
Municipal Code, as drafted and implemented, constitutes a “pattern and practice” violation of the
California Environmental Quality Act (CEQA). Second, CERF hereby requests a meeting with you,
the City Attorney, the Planning and Building Director, and a representative of the City’s Risk
Management Division to discuss CERF’s claim and possible avenues for resolution. CERF’s goal is
to provide the City an opportunity to work collaboratively with us and the community without the need
for litigation.

Specifically, Encinitas Municipal Code section 30.34.020 (Coastal Bluff Overlay Zone),
subsection (B)(9) contemplates the City development and adoption of a:
“comprehensive plan, based on the Beach Bluff Erosion Technical Report
... to address the coastal bluff recession and shoreline erosion problems in
the City. If a comprehensive plan is not submitted to, reviewed and
approved by the Coastal Commission as an amendment to the City’s Local
Coastal Program by November 17, 1996, then ....the City shall not permit
the construction of seawalls, revetments, breakwater, cribbing, or similar
structures for coastal erosion except under circumstance where an existing
principal structure is imminently threatened...” (Emphasis added).
Because the comprehensive coastal erosion plan contemplated by the Municipal Code has
not been produced, the City’s pattern and practice has been to mandate applicants wait for
emergency conditions to arise, then require them to obtain emergency permits from the California
Coastal Commission. After the “emergency” coastal armoring is fully built (often substantially larger
and more permanent than the failed structure), the City processes a Major Use Permit and Coastal
Development Permit for the as-built seawall or other coastal armoring. Because there is no proactive
planning for such coastal armoring – despite its unquestionable inevitability – every single permit that
comes forward evades CEQA review and is instead deemed exempt from CEQA pursuant to
California Public Resources Code section 15269 (Emergency Projects).

The Encinitas Planning Commission approval on January 5, 2012 of Case #09-035 MUP/CDP
(Blue Curl LLC, 1084 & 1086 Neptune Avenue, APN: 254-291-02&18) provides a very recent
example of this problem. Both CERF and the Surfrider Foundation provided multiple written
comments detailing the illegalities of approving the follow-up permits without requiring substantive
CEQA compliance – including consideration of alternatives, cumulative impacts, and mitigation. By
“tiering” off of the emergency exemption applied for the new structure’s original construction, the City
effectively fails to require: (i) a full assessment of alternatives; (ii) consideration of cumulative
impacts; or, (iii) imposition of appropriate mitigation. Statements by staff and Commissioners at that
hearing validate the critical points of this correspondence and CERF’s claim, namely: (a) this pattern
and practice of approving after-the-fact permits without substantive CEQA compliance is “the way
the City’s always done it”; and (b) if an applicant came forward and sought to obtain approval for a
seawall before an emergency condition arose, there would be no process for them to do so.
Please do not misinterpret CERF’s goals. We are not advocating for additional, proactive
seawalls throughout Encinitas. Rather, the City must recognize that its current practice fails to
provide the requisite analysis of impacts and mitigation requirements – in particular on a citywide
cumulative basis – and therefore either the comprehensive plan contemplated by the Code must be
completed or the City must require such analysis with the after-the-fact permits. The situation
currently facing the City of Encinitas is analogous to that in the City of Solana Beach over the last
15+ years. As a result of significant community involvement and numerous lawsuits, Solana Beach
is now seeking approval of a Local Coastal Program that would include, in conjunction with the rights
of bluff top homeowners to construct limited duration (80 years) emergency coastal armoring, the
ability for the City to recover “Land Lease/Recreation Fees” to mitigate for the inevitable loss of public
beach access due to the various types of coastal armoring impacts. (See attached).
This is what CERF seeks for Encinitas. At the meeting we are requesting with City Staff,
CERF would like the opportunity to provide additional detail regarding the evolution of coastal
armoring policies in Solana Beach and how Encinitas can benefit from its neighboring city’s
experiences. In light of evolving regulatory policies to deal with the very real likelihood of sea level
rise due to global climate change, it will benefit the City of Encinitas to be proactive on coastal
protection issues. The alternative, resolution through litigation, has been both expensive and
ineffective in other cities that have opted to do so only after having been ordered by the courts.
CERF is based in, and has numerous members from, the City of Encinitas. Hence, we would
greatly appreciate the opportunity to collaborate rather than litigate. I look forward to your
consideration and meaningful response.