After settlement, Stinson water board will reconsider septic system

05/11/2017

After the owners of a beachside property sued the Stinson Beach County Water District for denying a septic system application—a move that effectively blocked development of the long-vacant lot—the district’s board has agreed to a settlement that allows the owners to return for a new vote.

The suit, brought by Brian Johnson and Modestine Bagwill in December, argued that some of the district’s board members deemed a septic system too risky for the property, without substantial evidence that it was. The project failed with a vote split 2-2; a fifth board member recused himself because he lived too close to the property, at 21 Calle Del Onda. The couple declined to speak about the suit through their lawyer, Len Rifkind.

(Though Mr. Johnson and Ms. Bagwill filed the suit, they were trying to sell the property at the time, and it was a buyer in escrow, Craig Nunes, who applied for the septic system and variance from the water district.)

The suit alleged that it was opposition to a new home on the property—an issue over which the district does not have authority—that spurred the application’s denial. According to meeting minutes, however, the president of the board stated at the time of the vote that the district was only focused on the septic system.

A March 2016 letter from Mr. Nunes to the district states that Ms. Bagwill’s family has used the property since at least the 1930s, but that the house burned down many years ago. Now, Ms. Bagwill is 83 years old and “has been trying to sell the property for years to supplement her retirement, but has struggled to find a buyer with the foresight and patience to rebuild,” he wrote. (He applied to the county for a coastal permit for a new residence, but rescinded it in August, according to county planner Tammy Taylor.)

According to the septic application, plans for the property, which has a sand berm facing the beach, included a new 2,154-square-foot home, 330-square-foot garage, driveway and septic system encircled by a 12-inch concrete retaining wall. The previous septic system would be either abandoned in place or disposed of, according to a water district staff report. 

The new septic needed not just approval but a variance, because it did not meet requirements for 100-foot setback between the dispersal field and high ocean water. Mr. Nunes asked for a 56-foot setback instead.

The septic request triggered a number of concerned letters to the water district. Some neighbors worried about the project’s proximity to the ocean, noting that water can reach the edge of the property and raising the possibility that the septic system could be flooded. “The rule of 100 feet from water is a rule that was made for health and this is why I object,” one man wrote.

But there were broader concerns as well. In a letter to the county, one neighbor said there were sand dunes on the property that were decades-old and that the development could both harm that habitat and worsen flooding for nearby homes. Impacts to the viewshed and the size of the home were also called out for critique, with one letter arguing the size was more suitable for Seadrift.

The neighbor also argued that the public had used much of the lot to access the beach for 30 years, and that developing it would “interfere with the public’s right to beach access.” 

Despite the concerns, water district staff recommended approving the system last fall. In their report, they noted that an engineering analysis for the septic system said that under current conditions, a 100-year flood event wouldn’t breach the berm, and that flooding should not be an issue. Though staff also said that sea-level rise in 50 years could mean that floods would top the berm, the septic “is not anticipated to experience significant wave action or wave force.” 

According to minutes from the district’s September meeting, board president Sandra Cross said the board was focused only on the merits of the application. Still, she and another director, Barbara Boucke, were worried about how a potential septic system failure could affect neighbors. And Ms. Cross believed the requested variance was “huge in relation to the normal setback.”

“President Cross stated that there is more at stake here than the approval of the setbacks,” the minutes state. “The precautionary principle to risk management states that if an action or policy has a suspected risk of causing harm to the public, or to the environment, in the absence of scientific consensus…the burden of proof that it is not harmful falls on those taking an action that may or may not be a risk.” 

The suit counters that there is “no evidence in the administrative record describing adverse impacts caused by the variance or new wastewater system
designs.” 

Mr. Rifkind, the lawyer for the plaintiffs, said that the septic system was either adequate or it was not. “The engineer said it was okay. I didn’t see evidence contrary to that” in the record, he said.