On Thursday, July 12, the California Coastal Commission will consider whether to approve a coastal permit to allow construction of active recreation facilities and a bathroom at Sunset Ridge Park.

The July commission meeting will be held in Chula Vista, though the item was previously scheduled for discussion at the commission’s June meeting, which was held in Huntington Beach.

Probably concerned about potential denial by the commission, the city of Newport Beach requested that the item be continued to another meeting, hence the Chula Vista location.

While one might consider development of a park a relatively benign activity, Coastal Commission staff has recommended against approval of the project as proposed.

A big issue is whether environmentally sensitive habitat area (ESHA) has been illegally removed from the site.

Improper removal of habitat was also an issue for another Orange County item on the June commission agenda, the 111-home Shea project in the Bolsa Chica area of Huntington Beach. For the Shea project, the question was whether wetlands had been illegally filled.

The California Coastal Act is very strict about protecting sensitive habitat in the coastal zone. Any ESHA removal is limited to only certain narrow purposes and must be approved by the Coastal Commission.

The only exceptions are for vested rights which predate passage of the Coastal Act. Consistent with the Coastal Act, if habitat removal was illegal, then a site should be treated as if the vegetation were still present. To do otherwise would be an invitation to wholesale habitat elimination for sites being considered for development.

Newport Beach city officials argue that the Sunset Ridge site had been cleared in the past for fire prevention purposes. Newport Beach argues further that no coastal permits were necessary, since regular brush clearance had been occurring for decades, establishing a vested right before passage of the Coastal Act.

However, this has been disputed by some local residents who recall extensive vegetation in the not-so-distant past.

While many older aerial photos show a cleared site, others show stands of mature vegetation, indicating that brush clearance was less than continuous. Further, the habitat in question is more than 100 feet from any home and consists primarily of California Encelia, a species listed as fire resistant by the Newport Beach Fire Department.

As stated by Commissioner Steve Blank during the Nov. 2, 2011, Coastal Commission discussion of the project, “I think that’s an issue that staff and the fire department ought to continue, because I’ve been hearing this Uniform Fire Code from many cities and finally decided to look up what it actually said, because it has been used by developers to justify removing ESHA permanently from any site that a developer’s interested in developing.”

With the Shea project in Huntington Beach, the applicant maintained that any movement of earth was part of normal farming activities and anyway it had all happened before they purchased the property in 1996. This was disputed by local residents who had observed ponding on the site and grading since that time.

Potentially improper fill has been an ongoing issue for many years at the Shea property. In November 2007, when considering a long-range local coastal program for the site, the commission essentially punted, referring to “long-time farming” without resolving whether any movement of earth was incidental and necessary to farming and whether it was legal or not.

As stated by Commissioner Mark Stone at the June 2012 meeting, “Normally we would go for an enforcement action before we allowed a coastal development permit. In this case, all of that has been swept under the rug, and it’s very unfortunate.”

Perhaps the applicant was hoping the commission would leave it all “under the rug.” However, that was not the case this time around.

The commission was not comfortable going forward with what Commissioner Jana Zimmer called “this festering, unresolved question of what was permitted, what was unpermitted, and what we’re going to do about it.”

Zimmer stressed that “it is inappropriate to approve development on any site when we have questions about that.”

And isn’t that the way it’s supposed to be, whether in Newport Beach, Huntington Beach or anywhere else?

Should land owners be permitted to benefit from the illegal removal of coastal resources and then just march forward with development plans, even if habitat was removed with innocent motives?

And what if their motives weren’t so innocent?

As said by Huntington Beach Council Member Joe Shaw, “Failure to enforce unpermitted development only encourages it further, not only at Bolsa Chica but throughout the state.”

Sandra Genis is a former mayor of Costa Mesa and professional land use planner who serves on the Voice of OC Community Editorial Board.

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