A state agency is pushing back on allegations that it ignored public input and unfairly stymied a seawall project pursued by a homeowner and the Bolinas Community Public Utility District. Last week, a Marin County judge tentatively ruled in favor of the utility district and tech entrepreneur Mark Pincus, who are looking to collaboratively rebuild a crumbling seawall at the end of Brighton Avenue that provides a public passage from the street to the beach.
The California Coastal Commission granted a permit for the rebuild in 2020, but it required that Mr. Pincus significantly narrow the wall and made BCPUD liable for repairs. Both the utility and the homeowner said the restrictions were prohibitively onerous, and their lawyers argued that coastal commissioners were unfairly dismissive of pre-recorded video comments by Bolinas community members shown at the permit hearing. The coastal commission denied this claim, but Judge Andrew Sweet agreed.
“The comments by the commissioners, if nothing else, suggest an appearance of impropriety as to some animosity toward [Mr. Pincus],” Judge Sweet told a state attorney at a Zoom hearing last week. “They really jump off the page, to be honest with you. You’ve done a nice job diminishing them, but I think they’re pretty outrageous comments.”
The comments in question came from just two of the commissioners present at the hearing two summers ago, Sara Aminzadeh and Linda Escalante, who expressed concern about the sway Mr. Pincus might have over the decision. The billionaire entrepreneur, who founded the mobile gaming company Zynga, had hired Susan McCabe, an influential consultant who lobbies the commission to approve projects, and three commissioners noted they had spoken to Ms. McCabe before the hearing. Mr. Pincus’s counsel, Steven Kaufmann, is among the most prominent coastal development lawyers in California. But Commissioners Aminzadeh and Escalante singled out the public comments.
Commissioner Escalante noted the polish of the video comments, prepared by a local college student. “I would obviously expect no less from the developers of Zynga. I sometimes play your solitaire game, Mr. Pincus,” she said. “However, I’ll be honest: I am usually more trusting of more authentic presentations.”
Commissioner Aminzadeh expressed doubts that so many public comments about the width of the seawall could have come from an organic, grassroots effort, and worried that a wealthy homeowner’s “tenacious lawyers” could be trying to “game the process.”
“This is one of the most robust pro-seawall campaigns I’ve ever seen, and I just was interested in sort of who was behind it,” Commissioner Aminzadeh said. She later added that she was “troubled by what feels like a very aggressive campaign by this tech individual.”
The commissioners’ insistence on a narrower seawall, and their skeptical comments about public testimony, mystified BCPUD president Jack Siedman, who said the community agrees the project will help increase public access to the beach. “Two of the commissioners were acting as though these public comments were phony videotapes,” he said. “A lot of us found that offensive. Each commenter was a member of our community who gave honest testimony.” He added, “Let the guy fix the seawall. He’s not increasing the armoring or expanding his ownership of the beach.”
Mr. Pincus has owned the 4,800-square foot oceanfront home at 100 Brighton Avenue since 2009 through a company, AMJT Capital LLC. In 2017, he applied for a coastal development permit to rebuild the 50-year-old seawall that protects his home and allows public access to the western stretch of Brighton Beach through an easement with BCPUD. The utility signed on as a co-applicant, but the project would be funded by AMJT.
Seawall projects are “rarely consistent with the Coastal Act,” according to the commission’s staff report, because they can erode shorelines and reduce public enjoyment of sandy beaches. But the commission can approve seawalls that are necessary to protect existing buildings or preserve public access. BCPUD and AMJT argue that public access is exactly what is at stake with the Brighton seawall: Visitors and locals traverse it and use it for picnicking and ocean viewing, but its concrete surface has cracked and the structure is in danger of eventually collapsing.
In what their staff saw as a compromise, commissioners voted to approve the project with several major caveats. They shrank the width of the proposed wall from up to 16 feet to a standard eight feet (the existing wall ranges in width from seven to 10 feet), added a set of mitigation strategies and placed the financial burden for future repairs on BCPUD.
To challenge the decision, the utility and Mr. Pincus had to sue. Their lawyers said the conditions were unacceptable and amounted to a denial of the project, but their allegations concentrated on the two commissioners’ comments. The remarks showed BCPUD and AMJT had been denied a fair hearing, the lawyers argued.
Last week, Judge Sweet issued an initial ruling that the commission must vacate its decision because of multiple commissioners’ “wholesale disregard” for the pre-recorded video comments. At the hearing that followed, it was up to deputy attorney general Kimberly Gosling to argue against his ruling, which she said shocked the commission. Ms. Gosling said commissioners were simply evaluating the credibility of public testimony, and that their final votes to approve the project showed they weighed public input against their hesitancy to approve seawalls.
“I think it’s fair game to talk about who’s behind an application,” Ms. Gosling said. “Animosity certainly wouldn’t be fair, but I don’t think those comments reflect animosity, and I also don’t think that they at all affected anything else in this hearing, including the outcome.”
Judge Sweet agreed to take another look at the case “out of respect” for her argument., but if he sticks to his tentative ruling, the commission will have three months to schedule a new hearing on the project.