Based on archaeological findings, Native American heritage claims, a "Deny the Ridge" campaign and broad public objections, the Coastal Commission on June 12 discouraged property owner Signal Landmark into withdrawing its "Ridge Project" proposal to build 22 houses on Bolsa Chica Mesa in Huntington Beach. With the Commission leaning toward a "no" vote on the Land Use Plan revision needed for the project, Signal Landmark withdrew its project application, meaning any future construction plan for the site must start again with the local city council.
The action preserves natural habitats and protects ancient artifacts -- and by many accounts, gravesites too -- at a prehistoric village complex occupied as much as 9,000 years ago. Heard in the Huntington Beach City Council chambers, the agenda item was well attended and drew fervent speakers in opposition to the project.
Signal Landmark, working with developer Hearthside Homes, had offered to mitigate construction on the five-acre "Ridge" site through an agreement to preserve open space on the adjacent six-acre "Goodell Property," which it had an option to buy, plus disputed cultural mitigation proposals. Objectors' letters described the Ridge and Goodell properties as the last two privately owned open-space parcels remaining out of a 30-acre area that, as a whole, showed archaeological signs of supporting dense settlements and receiving hundreds of burials in the distant past.
Signal Landmark has already obtained permits for two nearby housing complexes, known as Sandover (16 units, completed) and Brightwater (347 units approved, some as yet unbuilt). The Ridge property, if built up, would extend housing development into an unbuilt area north of the Bolsa Chica Ecological Reserve.
A Commission staff letter in the June agenda materials (at http://documents.coastal.ca.gov/reports/2014/6/Th9a-6-2014.pdf) said that when a staff report last December suggested the Ridge site had diminished cultural and habitat value, and recommended accepting the Goodell/Ridge land swap arrangement, arguments to the contrary poured in from scholars, public agencies, environmental activists, Native American organizations and cultural preservation offices. Among these were expert opinions on the site's archaeological importance and its value as habitat for raptors and other species, potentially including burrowing owls.
Additional issues raised and disputed included the width of buffers necessary around environmentally sensitive habitat areas (ESHA) and potential drainage effects on an ESHA area of eucalyptus. In this changing light, the staff began to place stricter conditions on their recommendation and the Commission postponed consideration of the matter at the city's request. (See http://lat.ms/1iDEb0b and http://bit.ly/1qnZU46.) Commission staff later shifted their recommendation to oppose the project outright.
The richest discoveries of ancient settlement remains and burials have been outside the subject property at sites known as ORA-83 and ORA-85. ORA-83 is also called the "Cogged Stone Site" for its unique gearlike stone carvings, and is on the National Register of Historic Places. Project opponents' letters said all of ORA-85 and most of ORA-83 had already been destroyed by development although a cemetery area of ORA-83 was preserved. Disputed was whether a village site on the subject property, known as ORA-86, had value comparable to the other two sites, or whether the whole area including all three sites should be viewed as a single unit. Many critics of the project said yes, including members and supporters of several bands of Mission Indians, especially the Gabrielino/Tongva and Juaneño/Acjachemen, for whom the site has special cultural and spiritual significance.
The local "Orange Juice Blog" headed its report of the proposal's withdrawal, "Most of HB Rejoices!" (http://bit.ly/1lNcZkv) The Bolsa Chica Land Trust site announced simply, "Withdrawn!" (http://www.bolsachicalandtrust.org).
Garcia, as Mayor of Long Beach, must leave Coastal Commission
Robert Garcia, mayor-elect of Long Beach, must resign his Coastal Commission seat by September 13, according to the state Attorney General's office and the Coastal Commission. The Long Beach Press-Telegram (at http://bit.ly/1q7RPhE) and the Long Beach Reporter have the story in detail, and the typographically eccentric Long Beach Reporter site has posted copies of the relevant letters, by Assistant AG John Saurenman and the Commission's executive director, Dr. Charles Lester, at http://www.lbreport.com/news/jun14/coastcom1.htm. From the letters, the Attorney General's conclusion appears to be that, because Garcia is one of the six members appointed under Public Resources Code Sec. 30301(e), he must be a currently serving county supervisor or a city council member in the Coastal Commission district he represents. As Mayor, he would be neither.
June, relatively speaking, was a lull in Coastal Commission business, making it possible to look back and ahead. The meeting looked forward to several expected challenges:
The Commission voted to postpone consideration of implementing ordinances to finalize the Marin County Local Coastal Plan (LCP), delaying action for up to a year without setting a definite next hearing date. This spring's other big unfinished LCP, for the Santa Monica Mountains, is expected to be finalized in July through consideration and approval of its implementing ordinances.
The Commission also postponed action until August on San Diego's proposed LCP revision, which includes an amendment to the La Jolla Land Use Plan and a limit on access to Children's Pool Beach during seal pupping season. The Commission's Dr. Lester warned that an extra day of hearings might have to be scheduled then to accommodate the interested speakers on the subject. Public interest is high because it pits public use of the pool at the site against concern for seals using the beach as a haulout. A four-day schedule would likely run Tuesday through Friday if one had to be arranged instead of the usual three-day agenda.
One speaker on the postponement, Cheri Jacobs Aspenleiter of the RAMP disability rights group, offered a hint of the debate to expect in August. She said she swam in salt water as therapy for a spinal injury -- either by swimming in the public saltwater pool onshore, which she said is immensely valued by people who swim for therapy, or by snorkeling along the coast, where, she said, she had noticed an overpopulation of seals and underpopulation of food species such as garibaldis and mussels. (See http://bit.ly/1q8moU8 on RAMP's campaign to improve disability access to the pool.)
A further look toward the future was implicit in the Commission's field trip to the Banning Ranch in Newport Beach, a site of continuing active oil drilling, of mitigation work to fix damage to coastal scrub and, significantly, of a proposal for a 1,375-unit housing development. Since the development is locally opposed, it is expected to come before the Commission at some point. See http://lat.ms/1oAAtfO.
The Commission heard warm public testimony in favor of AB 1102, a measure to protect beach fire rings against removal without a coastal development permit.
Even the mayor of Huntington Beach, Matthew Harper, put in a good word for beach bonfires in welcoming the Commission. He said wood fires were necessary on the beach -- not charcoal, which is less warm, or bottled gas, which leaves canisters to break and rust. He called it a beach access issue: "It's too cold to go to the beach after dark unless you have a good beach bonfire to keep it nice and warm for you." The proposal, which is now before the State Senate, responds to a procedural wrangle of litigation and local legislation, described in the most recent bill analysis posted at http://bit.ly/1lxoEiu.
On a less cozy note, the Commission briefly discussed AB 976, to give the Commission power to impose fines. That bill last formally moved in 2013, but similar legislation did pass as of June 15 in the Legislature's Natural Resources budget trailer bill, SB 861. (See http://bit.ly/1na4EDS.) Staff at the meeting said fines imposed under the measure would be used to remediate the types of problems caused by the respective violations -- if not always the exact violations occasioning the fines -- and about half of such problems involved public access. [Clarification: the fines newly authorized apply specifically to violations of public access provisions of the Coastal Act.]
As the Sacramento Bee's Jeremy White noted online, the Natural Resources budget bill also creates a California Climate Resilience Account to address climate change and transfers regulation of drinking water from the State Department of Public Health to the State Water Resources Control Board.
"Issue of 'Substantial Issue'" is an Issue
Two procedural arguments from the May session spilled into June: one about the power of neighbors to appeal to the Commission, and the other about the power of Commissioners to shut down consideration of appeals. Early in the June session, the result was a tense, technical "discussion item" debate led by Commissioner Jana Zimmer.
A big piece of the discussion had to do with what Zimmer termed "the issue of 'substantial issue'." That controversy arose from a debate during the May 15 Commission session (Item 14a) on whether Pullman Ditch, an intermittent stream in a suburbanized patch of Half Moon Bay waterfront, harbored rare Red-Legged Frogs or San Francisco Garter Snakes. Conclusions about the species' presence or absence in turn affected whether property owner Mark Stoloski could build four more houses near the ditch.
In response to neighbors' appeal of the Stoloski project, Commission staff recommended that the Commission grant a finding of "substantial issue", which would mean finding that the appeal had sufficient merit to go forward to de novo review. (If staff had recommended against a finding of "substantial issue" they would have made a presentation rebutting the presumption that a substantial issue existed.)
Skeptical about the imputed presence in the ditch of rare frogs that had not been directly seen at the site, Commissioner Zimmer raised a procedural question about a long-term standard practice for deciding if enough doubt exists among Commissioners to bother discussing the merits of a recommended "substantial issue" finding. Traditionally, the Commission chair asks for a show of at hands to determine if at least three Commissioners object to a finding of substantial issue in accordance with the staff recommendation. If three hands go up, the chair invites discussion and a vote on the question.
Zimmer asked if questions could be posed on an appeal before the call for the show of hands -- significant because that would make it possible for one or two Commissioners who disagreed with a "substantial issue" staff recommendation to highlight flaws in an appeal for other commissioners before any of them took definite positions supporting or opposing de novo review. Zimmer noted Commission rules did not formally provide for the three-hand approach. She was supported on the right to ask preliminary questions by Commissioner Dayna Bochco, who expressed visible exasperation over the variably reported conditions of Half Moon Bay's frogs and ditches. Others chimed in as well.
After some fuss it emerged that questions could indeed be asked before the show of hands, and Zimmer asked a few, but Commissioner Kinsey and the staff counsel urged the Stoloski hearing forward to the call for the show of hands -- three of them went up easily -- and thence to a hearing and vote on the presence or absence of "substantial issue." The appeal in the Stoloski matter was rejected by a 9-2 vote of the Commission, hence done with on the spot without a de novo review.
In June the Commissioners returned to appeals procedure in a "discussion only" agenda item near the start of the June meeting (June 11 item 6d). Staff had meantime prepared a legal memo outlining Commission appeal procedure (which Zimmer suggested be distributed to all new commissioners) at http://documents.coastal.ca.gov/reports/2014/6/W6d-6-2014.pdf.
Several Commissioners reported Stanley Lamport of Cox, Castle & Nicholson, who had represented Stoloski in the Half Moon Bay matter, had weighed in with them ex parte to argue that, although the "no substantial issue" finding is an exception to a presumption in favor of a "substantial issue" finding, that didn't mean the "substantial issue" finding was actually presumed. ("Don't you just love lawyers?" asked Bochco.)
Zimmer suggested making it standard procedure to seek questions from Commissioners before calling for the show of three hands.
The staff memo set out appeal procedure in another area that saw controversy at the May meeting: the definition of areas where a local resident can appeal a project directly to the Commission as of right. The question came up in May because the Marin LCP converted several types of development on West Marin farmland into principally permitted uses, which are ordinarily not appealable directly to the Commission. Appeals as of right are available within specified distances of riparian or sensitive habitats and between the ocean and the nearest coastal road, whether the permits involved are "principally permitted uses" or not. The clarifying discussion in June, however, wasn't nearly as complex as the original extension of "principally permitted use" definitions had been in Marin in May.
The most difficult June procedural discussion concerned the logistical difficulty of providing two Commissioners' signatures to support appeals that are recommended by Commission staff (or by any one Commissioner), as opposed to appeals brought by project proponents or members of the public. The problem -- or one of them -- is that the Commission has only a ten-working-day deadline to appeal any land-use decision by local authorities exercising LCP-delegated coastal permit authority. Commissioners complained that they were sometimes called to provide signatures at the last minute for appeals that they did not have time to read in detail before signing.
Zimmer noted she had been constrained as a lawyer from placing a document before a court without feeling a personal sense that its allegations had a basis, and she felt the same about placing appeals before the Commission on staff's assurances.
Commissioner Effie Turnbull-Sanders asked if staff could simply initiate their own appeals rather than make last-minute calls on Commissioners: "It may be a little bit of makework if we're called the day that an appeal is due and we're actually briefed by staff" who are better-informed, she said. Commissioner Wendy Mitchell took up the suggestion even though following it through would require a legislative Coastal Act amendment. Commissioner Gregory Cox leaned harder on the problem of logistical pressures on Commissioners to rubber-stamp appeals they had not fully reviewed: "To me it just doesn't sound right." He asked, could staff possibly discuss de minimis project changes with proponents to bring them into compliance without formal procedure?
Procedurally a vote couldn't be taken on any of the questions raised, but they remained in the air, presumably deferred to the next legislative session if any. Which left an additional question in the air: whether, if invited to adjust Commission procedure, the Legislature might develop intentions of its own.
Santa Cruz appellant Mark Saito complained of his neighbor's construction permit, "Basically my view is being handed to my neighbor." He suggested that a cypress tree in his own back yard would be more protected if it happened to stand between the houses, so "I know this doesn't concern the Coastal Commission but it seems like the tree has more rights than I do as a neighbor." The Commission made a finding of "no substantial issue," meaning his appeal failed, and neighbors Hassan and Tooran Khayam-Bashi would be getting their permit.
During a string of permit appeals on houses in Venice, among the very last agenda items of June 13, a young father stood up to speak at public comment, surrounded by his wife and young children. He said he came from a family that had lived many generations in Venice but his own family was having to move to Inglewood. He worked in food service, he said, and for people working at food-service wages, "we can't even afford to eat a meal in our own community." He said, "We're getting pushed out and I don't think it's fair." It was not clear if he advocated any particular action on the item at hand. The item was No. 10c: to demolish a single-family house that would be tied to the adjacent lot and refitted with a two-car garage, a "second floor recreation room," a pool and landscaping. The house on the adjacent lot would get a remodel as well. The proposal was approved.
The June meeting's agenda, most of it now annotated with vote results, is at http://coastal.ca.gov/mtgcurr.html. It will move to a June 2014 archive link at http://coastal.ca.gov/meetings/mtgpast.html later this month.