Aliso Beach concessionaire Michael Weiss hoped to get California Coastal Commission approval of amenities for which he once thought he had permits.
Those hopes were dashed by a letter to Orange County Parks Director Mark Denny from the commission staff giving Denny until today to respond to the commission threats to take legal action to resolve the placement of storage containers on the sand and the removal of vegetation on the beach without official approval. The letter requested removal of the containers by July 16.
"I have been told that I cannot get a permit to have the containers on the sand," said Weiss, who was awarded the lease for the Sands Café and concession stand by the county. "I have driven along the coast from San Diego to Santa Barbara and I found many businesses that have containers on the sand, and my assumption is that they all have permits — so why can't I?"
"This is a selective enforcement issue."
Denny did not immediately return phone calls for comment.
The June 17 letter stated that the commission prefers an amicable resolution, but it is authorized by the Coastal Act to issue a cease-and-desist order to enforce any requirement of a certified Local Coastal Plan, in this case, Laguna's.
Litigation might include the imposition on the person held responsible for the un-permitted development — that would be the installation of the storage containers — of as much as $30,000, but not less than $500 per violation. The act also authorizes fines of not less than $1,000 or more than $15,000 a day imposed on the person who "knowingly and intentionally" violates the act.
Weiss was under the impression when he invested more than $250,000 to upgrade the concession stand to café status that he had permission to locate the containers near the building for easily accessible storage of rental equipment required in the lease, and for additional seating on the sand outside the patio area.
The commission letter stated the proposed sand seating would also need a permit.
Beach umbrellas allowed
"Our position is that we don't see any difference between us putting chairs and tables on the sand for patrons and storing them at night and the beachgoers who bring umbrellas, chairs and other stuff to the beach and take it with them when they leave," Weiss said.
The county had approved Weiss' original plan, which included the questioned sand seating and the storage for it and rental equipment. However, they were not included in the county's application to Laguna Beach, the local permitting agency for coastal development, which approved the application as submitted.
Mike Hentzen, of the Orange County Parks division that handles commercial projects, said at the time that the county did not think the tables and chairs needed a permit because they were to be stored each night.
Following a complaint by South Laguna resident Penny Elia, the county rethought its position. And it had an out, Hentzen said.
The lease with Weiss contained a caveat: The seating and containers on the beach were permissible with the approval of county parks director Mark Denny, if they didn't create a public nuisance and met all the provisions of required permits, Hentzen said.
Weiss said he was informed on March 25 that his proposed soft opening on March 27 and public opening on April 1 could not go forward.
"Two days before we were to open, they shut us down," Weiss said.
Weiss did make the Memorial Day deadline to open.
And he plans to apply for an amendment to his approved permit in order to keep the sand seating, which inspired the concession's unofficial name of Sands Café.
He will seek the support of customers, providing them with petitions.
City Manager Ken Frank noted in his Friday memo of June 11 that Weiss would be applying for two changes to his permit: one to allow the storage containers and the other to allow the tables and chairs on the sand during operating hours.
"I was told that if I filed for an amendment, the containers could stay until a resolution," Weiss said.
Commerce discouraged on beaches
The city does not generally issue permits for commercial projects on beaches. And if approved by the city, Weiss' project is not likely to survive an appeal to the California Coastal Commission, based on the latest communication.
Commission District Enforcement Analyst Andrew Willis noted in his letter to Denny that the storage containers on the sand, the removal of vegetation and the proposed seating area reducing the availability of the public's sand constitute a change in beach access and intensify the café's use, requiring a coastal development permit.
If approved by Laguna Beach, the permit would be appealable to the commission.
Willis said a quicker resolution would be the removal of the storage containers and filing an application at a later date for the permit, which the letter indicated would not likely to be forthcoming due to conflicts with the Coastal Act of 1976.
The commission administers the act, which provides planning and programs to manage conservation and development along California's 1,100 mile coastline.
Local coastal programs are submitted to the commission for approval. Once approved the commission delegates permitting authority to the local government unless appealable to the commission.
The commission takes the position that the Aliso Beach development is under its authority.
Furthermore, Willis cited a Laguna Beach policy that includes the prohibition of constructions and other man-made structures on the sandy portion of the beach unless necessary for public health and safety, i.e. restrooms.
Laguna's local coastal plan also includes retention and improvement of existing public beach access in the city and the protection and enhancement of the public right to use the dry sand beaches in the city.
Both policies are germane to the Sands Café permit, Willis wrote.
Patio seating allowed
Weiss has the option of confining seating to the spacious patio outside the building, and he has added to it with the county's permission, but that was not his dream, nor his financial plan.
He and his partner Aaron Trapp envisioned a year-round cliental of sunrise-to-sunset diners and beach-goers in between.
While waiting for their orders, adults could peruse a bamboo-framed collage on the ocean-facing wall of about 25 photographs, depicting the history of the beach. The photos were supplied by Victoria Skimboards, the Laguna Beach Historical Society and the Orange County Archives.
The roughly-810 square-foot café and concession stand was given a tropical theme, with bamboo outdoor dining furniture under thatched umbrellas on a 770 square-foot patio. The patio is surrounded by a low wall that can also be used for seating.
A special children's area was eliminated when the beach seating became an issue.
An enclosed area was set aside to store rental items such as beach chairs and umbrellas, which the county required the concessionaire to provide, Weiss said.
The area was not large enough or conveniently located to store the rental equipment to suit Weiss; hence the containers on the sand. He may have to store equipment off-site if, as expected, a permit for the containers is denied.
The café is tucked against the bluff below Coast Highway. It offers more space and a better view of the ocean than the old snack bar, which was located with public restrooms at the base of the Aliso Pier, demolished in 1997.
Customers will find the Sands Café open for business from 9 a.m. to sundown.
Breakfast choices include waffles, egg dishes, pastries, fruit and a children's menu.
The afternoon and evening menu features fresh salads, burgers, sandwiches and full kids' menu. Orders are taken at the counter, either to "grab and go" or to be eaten outside—on the patio or the beach, but not in chairs the café would be happy to provide.