Marin County supervisors cleared the path for construction of a new home on the last shoreline lot in Stinson Beach despite reservations about the precedent their action will set for sea level adaptation.
Following a 90-minute public hearing on Tuesday, the supervisors unanimously denied an appeal of the county Planning Commission’s approval of the project, which calls for the building of a one-story, 1,296-square-foot home and a new septic system at 21 Calle Del Onda. The project will be built on a 15,200-square-foot, shorefront lot within a coastal dune area.
Elizabeth Brekhus, an attorney representing the appellants, owners of two nearby properties, said the decision flaunts a recent county assessment of sea level rise risk in the area. She said she plans to appeal the supervisors’ approval of the project to the Coastal Commission, which could deny the project.
“It envisions a very doomsday scenario out there,” Brekhus said. “If it’s going to guide our decision making, then we need to be serious about limiting development.”
Brekhus said that during the January storms 20 Stinson Beach houses suffered damage and six homes had their septic systems fail.
In his closing remarks, Supervisor Dennis Rodoni said, “I have general concerns related to this process and the precedent we’re setting here. Some of our county policies are in direct conflict with this application.”
Nevertheless, he and the other supervisors ultimately voted to deny the appeal. Supervisors were facing the prospect that if they denied the project that the property owner, Brian Johnson, would sue claiming the county had effectively taken his property.
“From the very beginning of this project, we have understood that it would face a takings analysis,” said Steve Kinsey, a former Marin County supervisor, who represented Johnson as a consultant.
Under U.S. constitutional law, a regulatory taking occurs when governmental rules limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of the property. Under the Fifth Amendment to the Constitution, governments are required to pay just compensation for such takings.
Len Rifkind, a lawyer representing Johnson, said county staff estimated the project’s value at about $3.5 million.
“I’m just asking for fairness,” said Johnson, whose family purchased the property in the 1930s.
A smaller house on the property, under 600 square feet in size, was destroyed by a fire.
Kinsey said, “This is the last shoreline lot in Stinson Beach. It’s 80 feet remaining of 11,000 feet that were all dunes. How can we treat this one 80-foot segment of the shoreline so differently?”
In her closing remarks Supervisor Stephanie Moulton-Peters said, “I consider this project an infill development project. It was owned by a family for a very long time that had a reasonable expectation to be able to rebuild a home that burned.”
The county’s local coastal program prohibits development within coastal dunes, which are considered to be environmentally sensitive habitat areas (ESHAs). According to the county’s environmental review of the project, the building site contains 1,573 square feet of ESHA.
In 2021, however, the county adopted amendments to its local coastal program (LCP), one of which allows it to approve projects that fail to comply with the LCP if necessary to avoid a taking.
That amendment requires that takings exceptions be as consistent as possible with all applicable policies and propose the minimum amount of development necessary to avoid a taking as determined through an evaluation.
Brekhus asserted that standard has not been met because Johnson could build a smaller house and still recoup his investment in the property. Deputy County Counsel Brandon Halter disagreed.
“There is a basis to conclude the project does minimally conflict with those policies,” Halter said.
The project has managed to clear a number of hurdles since being initially reviewed by the Planning Commission in November 2021. At that time, the proposal called for a 1,488-square-foot house, a 288-square-foot detached garage and a new septic system.
The commission’s vote on the project was postponed in November 2021 after Rachel Reid, the county’s environmental planning manager, asked for a continuance to assess public comments questioning the project’s compliance with the California Environmental Quality Act.
At the time, the county was relying on environmental analysis prepared by the Stinson Beach County Water District. The water district granted Johnson a permit in July 2020 after he sued the district.
When the Planning Commission next considered the project on July 31, 2023, the project had been whittled down and the county had done additional environmental review deciding that a full-blown environmental impact report would not be necessary.
The additional environmental review required Johnson to mitigate the impact his project will have on dune habitat by restoring an equal area of dunes at a nearby location.
Nevertheless, in a 3-3 vote at the July meeting the commissioners denied the supplemental environmental review blocking approval of the project.
The project received new life, however, when the commission opted for a do-over, voting 3-2 on Aug. 28 to adopt the environmental review and approve the project.
“That is invalid,” Brekhus asserted Tuesday.
Brekhus also said the project fails to comply with the local coastal program’s requirement to have an approved septic system. The permit Johnson got from the Stinson Beach County Water District expired on July 18.
Sabrina Cardoza, a senior planner, however, said the immediate lack of a permit poses no problem.
“Given that a septic system has been previously approved,” Cardoza said, “there’s reasonable evidence that a septic system could be approved again.”
Supervisor Rodoni said the project demonstrates the urgency for the county to update the environmental hazards section of its local coastal program. The county has been working for more than a decade to complete a comprehensive update of the 37-year-old regulations. Changes must be approved by the California Coastal Commission.
Adoption of new environmental hazard policies has proved controversial because they may entail costly mandates for changes to prepare for sea level rise. The commission and the county have battled over what would trigger a requirement for a property owner to make changes and how extensive those alterations would have to be.
“I’m going to encourage staff to update the hazards as soon as possible,” Rodoni said.
But in an email, Community Development Director Sarah Jones wrote, “Much of the environmental hazards section will be shaped by the Coastal Commission’s statewide strategies for sea level rise adaptation and resilience, which are still under development, so we don’t have a timeline for finalizing the section as a whole.”
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