1. CDP Appeal Nos. A-6-ENC-09-040 & 041 Leonard Okun 820 & 828 Neptune Avenue, Encinitas Demolish one single family home and construct two single family homes on two legal lots subdivided before 1929

2. Staff Recommendation Special Condition No. 1(1) – Setback 65 feet leaving a house 20 feet deep, 40 feet wide. Special Condition No. 1(2)(c) – Residence cannot conform in height, size and bulk with character of surrounding area limited to 20 feet deep Special Condition No. 1(2)(e) -- Okun may seek front yard variance from City. Last front yard variance was denied by City in 2009 (560 & 566 Neptune). Special Condition No. 1(2)(g) -- All yard accessories must be 5 feet behind nonexisting “natural bluff line”.

3. City Approved setback 40 feet from retention wall The City approved the construction of the two new homes with a setback of 40 feet from the retention wall. This is 30 feet greater setback than the existing home. This is far behind the stringline. According to Mark Johnsson, stability will be assured “indefinitely”. Homes as approved by the City stringline 40 foot setback stringline Homes as approved by the City 40 foot setback stringline Homes as approved by the City 40 foot setback

4. Staff Recommendation Setback 65 feet from retention wall The setback in Special Condition No. 1 would reduce the use of the property to such an extent as to leave unreasonably small building area. The area would be less than 1/3 of that enjoyed by other properties throughout the Encinitas bluffs. The setback in Special Condition No. 1 would Reduce the building site as shown here stringline 65 foot setback

5. The setback recommended by Staff is unreasonable Homes as approved by CityHomes based on staff recommendation

6. Staff Recommendation ignores existing lawful protection Staff analysis depends upon ignoring existing lawful seawall and retaining wall. Johnsson memo of October 17, 2011 provides analysis: “if the seawall, gravel backfill and slope, and upper bluff retaining wall were not present.” Johnsson does not contradict his 2010 opinion that any structure at the bluff top will be stable indefinitely

7. Johnsson’s present opinion is based on facts that do not exist “if the existing seawall, gravel backfill and slope and upper bluff retaining wall were not present” The staff recommendation is based upon assuming that there are no protective devices. This is not supported by the Certified LCP which has no such requirement. In fact, the Certified LCP requires geotechnical evaluation to take all factors into account.

8. Project is consistent with LCP City LCP requires that all factors affecting stability be analyzed. LCP City Code 30.34.020D requires analysis of – Site Topography – Current and foreseeable cliff erosion – Potential erodability – Effects of marine erosion – Any other facts that might affect slope stability The existing walls are part of the topography, affect current, foreseeable and potential erosion, and affect slope stability. Under the LCP they cannot be ignored and since 1996 have not been ignored by the City.

9. LCP Required Finding Does not Prohibit Reliance on Existing Protection “Development proposed will have no adverse affect on the stability of the bluff, will not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over its lifetime [75 years] without having to propose any shore or bluff stabilization to protect the structure in the future.” LCP certified Municipal Code 30.34.020D.

10. Every Geologic Review Finds the Homes to be Consistent with the LCP Findings Required LCP findings for City approved homes are supported by – Civil Engineer J. W. Niven and Certified Engineering Geologist and Geotechnical Engineer R. D. Mahony, November 28, 2006, May 21, 2008. – Registered Civil Engineer and Certified Engineering Geologist J. Knowlton, August 21, 2008. – Engineering Geologist Robert G. Crisman and Registered Civil Engineer David. W. Skelly, January 7, 2011. – Engineering Geologist, Geologist, Hydrogeologist John P. Franklin, April 19, 2011. – Engineering Geologist, Geologist, Hydrogeologist M. Johnsson, September 30, 2010.

11. 2006 Report of Soil Construction Engineering, Inc. “SEC performed slope stability analyses using previously accepted soil strength parameters. The results of these analyses indicates that the bluff has an acceptable FS for both static (FS=1.57 and pseudo static (FS=1.1) conditions. “Based on the results of these analyses, it is our opinion that future development, at and beyond the 40 foot setback, will be reasonably safe from failure for the live of the structure which has been accepted to be 75 years.” Report of Soil Engineering Construction, Inc. dated November 28, 2006 reviewed by Dr. Mark Johnsson.

12. 2009 Report of Soil Engineering Construction, Inc. “Further, Soil Engineering Construction, Inc. has certified that, with normal maintenance the seawall, bluff reconstruction and upper bluff retention system will remain effective throughout the life of the existing residential structure (75 years) and the proposed residential structures (75 years from date of construction).” December 2009 Report of John Niven, RCE, and Robert D. Mahony, GE,

13. Coastal Commission Geologist attests that existing walls will protect the new homes Mark Johnsson, Coastal Commission Staff Geologist, has reviewed the geology and examined the site several times. Johnsson states that “… these analyses demonstrate that any structure at the bluff top will be stable indefinitely, provided that the shoreline protection system is maintained adequately.”

14. 2011 Report of GeoSoils, Inc. “the proposed development, as currently designed, should be safe from bluff erosion hazards for the next 75 years provided that the existing, permitted shore protection devices are adequately maintained.” Geotechnical report of David W. Skelly, RCE, and Robert G. Chrisman, CEG, dated January 7, 2011

15. SEC July 2012 Monitoring Report It is our professional observation that the 828 Neptune Avenue seawall is in excellent condition and that no maintenance or repairs are necessary at this time. Based on this most recent review of he seawall, we can and do certify that the wall, with normal maintenance as required, will remain in place and serve the engineering function for which it was designed, for a minimum of 75 years from this date.

16. GeoSoils July 5, 2012 Report GSI is in agreement with Commission’s staff geologist with regard to safety of the proposed development “indefinitely,” provided that the existing shoreline protection system is properly maintained. As constructed and with periodic maintenance, the expected life of the seawall and upper bluff retention wall is minimally 75 years.

17. Okun’s CDP 6-05-030 did not restrict Okun from relying on the protection which was approved. September 16, 2005 -- Special Condition No. 8 to CDP 6-05- 030 (Okun) “Future Response to Erosion” had no limitation on the approved protection devices. No limitation on approved shoreline protection is mentioned in the certified LCP. From 1996 through 2005, Okun and his engineers were in repeated contact with Commission staff for Permits #6-96- 96G, #6-01-005G, #6-01-011G, #6-01-40G, #6-01-62G, #6-01- 85G, #6-02-074G and CDP 6-05-030. No mention was ever made to Okun that in constructing the shoreline protection system at a cost of $2,000,000, he would not be permitted to use the system to redevelop his property.

18. Existing Development 1,400 SF home built in 1929 on two 50 foot wide lots. Home was damaged and lost 800 SF from 1996 landslide. Coastal Commission approved seawall and retaining wall all with before the fact permits. Permits #6-96-96G, #6-01-005G, #6-01-011G, #6-01-40G, #6-01-62G, #6-01-85G, #6-02-074G were approved. Final Permit CDP 6-05-030 had no Special Condition to limit reliance on approved walls to redevelop property. Okun spent $2,000,000 for the protection of his property and should reasonably expect to be able to construct a home like others on the Encinitas bluffs.

19. Existing house with 10 foot setback. Two rooms which were farther toward the ocean were lost and removed 10 feet

20. Development on Encinitas Bluffs LCP designates area for single family and duplex. 190 separate subdivided lots. 98% of the lots have been developed with homes. 82% of the lots are 50 feet wide or less. 53% of the homes have protective devices. 62% of the homes were built or altered with coastal permits. Okun

21. Development and public access immediately adjacent Okun Public Access

22. Other Development Permitted to Rely on Existing Walls The City of Encinitas approved the demolition of a home crossing two lots at 560 & 566 Neptune Avenue and the construction of two new homes. Geologic stability was demonstrated relying upon the Coastal Commission approved seawalls. City CDP 01-196 & 01- 197. No appeal was filed by the Coastal Commission. Upper and lower seawalls approved by Coastal Commission and City in 99-078-CDP approved 12/19/02 560 & 566 Neptune Avenue, approved to demolish existing residence on two lots and construct two new homes in 09-196-CDP and 01-197-CDP approved 12/16/04

23. Approved Development substantially similar to Okun’s City approvals 566 & 560 Neptune Avenue Under construction - 2006 566 & 560 Neptune Avenue Completed - 2010 Upper Wall Seawall Upper Wall Seawall

24. Proposed Development One 2,986 SF single family home with garage and basement at 828 Neptune Avenue (Lot 18), a legal 50 foot wide parcel. One 3,136 SF single family home with garage and basement at 820 Neptune Avenue (Lot 19), a legal 50 foot wide parcel. No shoreline protective device is proposed as all needed protection has been completed and approved under CDP 6-05-030.

25. The homes are well designed for the neighborhood Each of the homes is well designed to fit into the neighborhood where 82% of all homes and duplexes are on lots 50 feet wide or less.

26. 820 Neptune Avenue

27. 828 Neptune Avenue

28. Under the LCP, a Bluff Edge can be Formed by Retained Fill where a geologic or soils report shows that stability is assured by the fill. The staff Report claims that a bluff edge cannot include fill and that the following language from the certified LCP requires that only the “natural bluff edge” can be determined from the geologic and soils report: “In those cases where irregularities, erosion intrusions, structures or bluff stabilizing devices exist on a subject property so that a reliable determination of the bluff edge cannot be made by visual or topographic evidence, the Director shall determine the location of the bluff edge after evaluation of a geologic and soil report.” Municipal Code 30.04 This is not true for three reasons: – 1. The definition of “BLUFF” in the certified LCP requires that fill and excavation be considered as a part of a bluff. “ BLUFF, shall mean a scarp or steep face of rock, decomposed rock, sediment or soil resulting from erosion, faulting, folding, filling, or excavation of the land mass. The bluff may be simple planar or curved surface or it may be steplike in section.” Municipal Code 30.04 – 2. The words “natural bluff edge” are never used in the definition of “bluff edge”. – 3. A geologic or soils report could place a bluff edge differently than the location of a fill or a retaining wall if the fill or retaining wall did not contribute to stability or an engineer could not reliably determine what the value of the contribution of the fill or retaining wall to stability might be.

29. Photographs follow of the entire Encinitas bluffs

30. 1500-1600 Blocks

31. 1400-1500 Blocks

32. 1300-1400 Blocks

33. 1200-1300 Blocks

34. 1000-1100 Blocks

35. 900-1000 Blocks

36. 700-800 Blocks Okun Property

37. 600-700 Block

38. 500-600 Block 566 & 560 Neptune Avenue

39. 400-500 Block

40. 200-300 Block

41. 100-200 Block

42. 5 th St & 100 Block

43. 5 th Street and Moonlight Beach

44. Mark Johnsson cites the Encinitas LCP regarding setbacks in his December 16, 2002 memorandum relating to the Encinitas bluffs in relation to three appeals (A-6-ENC- 01-116 (Refold), A-6-ENC-02-003 (Berg), A-6-ENC-01-47 (Conway and Associates)). “Development proposed will have no adverse affect on the stability of the bluff, will not endanger life or property, and that any proposed structure or facility is expected to be reasonably safe from failure and erosion over it lifetime without having to propose any shore or bluff stabilization to protect the structure in the future.” Encinitas Code 30.34.020D [emphasis added]

45. 22 YEARS IS NOT THE USEFUL LIFE OF THE SEAWALL Commission explanation of mitigation fee use of 22 year life “In addition, mitigation for impacts to sand supply are based on the estimated 22-year design life for the seawall and, therefore, the proposed in-lieu fee sand replenishment plan only mitigates for the initial design life of the structure. The seawall, however, might outlast its design life. To address the impacts of the seawall on shoreline sand supply that will occur if the seawall lasts for more than its design life, Special Condition #1 requires that the applicants or successors in interest apply for an amendment to the subject permit within 21 years of issuance in order to either remove the proposed seawall or to provide additional mitigation for the additional years of design life that occurs to the seawall.” No findings were adopted for CDP No. 6- 05-030 (Okun). Findings adopted for the identical bluff protection next door at 808- 816 Neptune Avenue in CDP No. 6-03-048 (Sorich), explains that 22 years is the initial design life and additional fees will be imposed if actual life exceeds design life.

46. 22 YEARS IS NOT THE USEFUL LIFE OF THE SEAWALL Commission Report describing Sand Mitigation Fee Calculations for San Diego County Commission formula for calculating sand mitigation fee based upon estimated design life without maintenance. Report on In-Lieu Fee Beach Sand Mitigation Program: San Diego County, January 1997 (revised September 1997). L = The length of time the back beach or bluff will be fixed or the design life of armoring without maintenance (yr.)

47. Okun’s City Approved Development under Certified LCP Okun purchased the existing home in 1975 and has lived there since that time. The home, constructed in 1929 on two legally subdivided lots, was severely damaged in 1996. Okun is nearing retirement and wishes to demolish the existing home. Under its LCP the City approved two new homes setback far behind stringline, 40 feet from the Coastal Commission approved retaining wall.

48. The homes and seawalls do not impact Coastal Resources The homes themselves do not impact coastal resources any more than the 90 other homes approved by the Commission or the City. The seawall and retaining wall legally exist and do not impact any coastal resources which have not already been evaluated and approved.