Controversial Stinson Beach home approval is appealed
An appeal filed against a residential construction project in Stinson Beach could set a precedent for building in areas subject to rising seas.
The Marin County Planning Commission voted 3-2 on Aug. 28 to approve a coastal permit for the project at 21 Calle Del Onda. The plan calls for a onestory, 1,296-square-foot house and a new septic system.
The meeting was the third time the commission had discussed the project since July 31.
“It has significant potential precedent-setting implications,” said Don Dickenson, a commission member who voted against the project. “This is an environment that is changing. It may be changing more rapidly than some people thought.”
The commission approved the project even though it violates the county's local coastal program regulations. The property is a 15,200-square-foot, shorefront lot within a coastal dune area. The local coastal program prohibits development within coastal dunes, which are considered to be environmentally sensitive habitat areas.
In 2021, however, the county adopted amendments to its local coastal program, one of which allows the county to approve projects that fail to comply with the program if necessary to avoid a taking.
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.
“From the very first day our firm got involved in this project, we recognized that this was likely to be a constitutional issue as much as it was a planning issue,” said former county Supervisor Steve Kinsey, a consultant to the property owner, Brian Johnson.
Kinsey asserted that the project site is an environmentally sensitive habitat area “in name only.”
The amendment to the local coastal program allows for takings exceptions provided that the projects are 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.
“That is where I think this process has failed,” Dickenson said. “I'm not at all convinced this is the minimum use that is required to avoid a taking.”
But Gregory Stepanicich, a planning commissioner who voted to approve the project, said, “In my mind, there is no doubt that if we denied a single-family home at this location there would be a taking; therefore, what should be the appropriate house to be built there?”
Stepanicich said he could support the project given recent reductions in the project's size.
When the commission reviewed the project in November 2021, Johnson was seeking approval for a twostory, 1,488-square-foot house, a 288-square-foot detached garage and a new septic system.
Commissioner Rebecca Lind said she was willing to approve the project because the property owner had agreed to implement a plan to restore dune areas not permanently affected by the proposed development.
The commission's vote on the project was delayed 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. The permit expired July 18, 2023.
“There is no project without a wastewater permit,” Scott Tye, a spokesman for the Surfrider Foundation Marin Chapter, said at the commission's meeting July 31.
Tye said that the storms that caused flooding in Stinson Beach in January destroyed one home's septic system and caused 11 other homes to be “locked down and turned into holding tanks.”
The storms required residents to be evacuated on eight Stinson Beach streets.
Planning officials subsequently completed more environmental analysis of their own, although not a full environmental impact report. With the addition of certain mitigations, including the dune habitat restoration plan and vibrationreducing pile driving equipment, staff concluded that the project has been mitigated to a point where no significant effects on the environment will occur.
Dickenson, however, said a more complete environmental analysis would have included a review of alternatives that might have suggested other uses for the site that would have avoided a taking.
The county's revised environmental analysis of the project was initially rejected by the commission in a 3-3 vote July 31. On Aug. 28, the analysis was approved in a 3-2 vote along with the overall project.
The owners of two nearby properties filed an appeal with Marin County supervisors. They are Robert Friedman, who owns a parcel at 17 Calle de Onda, and Marisa Atamian-Sarafian and Dr. Stephen Sarafian, who owns a parcel at 24 Calle del Sierra.
“The adjoining neighbors are very concerned about this project,” said Elizabeth Brekhus, who is representing the Sarafians. “The impact of sea level rise is not being well addressed by staff. We know that is going to be impactful.”
At the Aug. 28 hearing, Dickenson said that should county supervisors uphold the Planning Commission's decision, their ruling could be appealed to the California Coastal Commission.