Homer Alaska - News

Story last updated at 3:44 PM on Wednesday, October 26, 2011

Boulder barrier built on Bishop's Beach

By Michael Armstrong
Staff Writer


Photo by Michael Armstrong

A worker with Sundance Construction moves boulders on the beach by the Rick and Connie Vann cabin at Bishop's Beach.

Bishop's Beach goers last Friday came across a sight that prompted puzzled phone calls to the city and press. Running about 500 feet parallel with the water's edge, landowners Rick and Connie Vann of Kasilof have put in a row of boulders to mark the southern edge of their property. The boulders mark a corridor between a survey line labeled "high tide line" and beach frontage bordered by driftwood logs below the Vanns' cabin on Charles Way near the city parking lot on the beach.

Starting in June 2004, the Vanns have been developing their oceanfront property. A modest 660-square-foot cabin with an illuminated star sits on the bluff above the beach. Following citizen complaints in 2004, the city issued a stop-work order when the Vanns started fill work at the toe of the bluff without a permit. Eventually the Vanns got the proper permits. The project now includes a pedestrian walk on the Vanns' property from Charles Way to the beach as well as bluff stabilization. A marked-off area at the base of the bluff includes signs of a fire with a slash through it — a warning not to build fires on private property.

There are no outstanding zoning or planning issues, said Homer City Planner Rick Abboud.

"All in all it's a quality development," he said. "One thing I'm impressed about is the path to the open beach appears to be a public access. That's something the city should be doing. That's a plus there."

The path is on the Vann's property and not blocked off, but it's not known if the Vanns have dedicated it as a public easement.

Abboud said the city's concern was that the boulders not block beach access. The boulders define a line in the sand but do not block any passage along Bishop's Beach to the west.

"Our main concern is people can get by their (the Vanns') property," Abboud said.

"(The Vanns) have a right to their property to the mean high tide."

On the Kenai Peninsula Borough's online parcel viewer, a map shows the property lines for the 1.25 acres of land extending out into Kachemak Bay. About half the property is on the beach or in the bay. The land is assessed at $41,600. Brandon McElrey, a borough land appraiser, says property below the mean high water mark has a nominal value in appraisals.

The U.S. Army Corps of Engineers sets the mean high water mark as a 17.3-foot high tide in Homer. That's the average of all high tides observed over a given time period, usually about 18 years, said Dave Casey, Kenai field office supervisor for the Corps of Engineers.

Abboud said the city considers it has right to the land seaward of that 17.3-foot high tide line. Property law gets confusing, because the property lines of the Vanns' and similar Bishop's Beach property date back to when the land was above water. Property owners can claim that property if they can show it was lost due to an earthquake.

"In theory you still have the right to that land to that mark," Abboud said of pre-earthquake corners that would now be underwater.

However, if the land was lost due to erosion, the city can claim the property right seaward of the 17.3-foot line.

"It's really muddy," Abboud said. "If it's all erosion, they have no claim below mean high tide."

Some landowners have wanted to count land below mean high water in issues like replats, Abboud said. In a case involving a replat of beach land below Baycrest Hill, the landowner wanted to do that, but the owner withdrew that application and it was never tested in court.

"There are a bunch of questions about this," Abboud said. "It's something that's going to come to a head, especially if people want to replat their land."

Another issue is if the Vanns need a Corps of Engineers permit to put boulders on the beach below the bluff. Casey said two laws apply: the U.S. Clean Water Act and the Rivers and Harbors Act. The Clean Water Act requires a permit to place fill — including boulders — below the high tide line. The corps defines that line for Homer as a 23.4-foot high tide, that is, the highest tide of record without a storm surge. Today's high tide at 3:15 p.m. is 23.4 feet, exactly that line.

That number is not to be confused with the mean high water line of 17.3 feet, the tide the city uses to define its property on the beach. That line also is the line used in the U.S. Rivers and Harbors Act, which regulates placement of structures in federal navigable waters. That law requires a permit if construction is done below the mean high water line of 17.3 feet.

Survey stakes for the line of boulders read "high tide line," with no number. It's unclear if that's the 17.3-foot tide line or the 23.4-foot tide line. A high tide of 21.53 feet at 1:51 p.m. Tuesday had surf washing over the boulders and inland several feet.

Casey said he discussed permit issues with the Vanns when they did their work in 2004. Since the work was above the 23.4-foot high tide line and outside Corps of Engineers jurisdiction, no permit was needed. As long as the work is outside Corps of Engineers jurisdiction, no permit would be needed for recent work.

Messages requesting comment from the Vanns were left at the Kasilof number for Sundance Construction, the Vanns' company, but at press time the Vanns had not replied. No one answered the door at the cabin on Tuesday afternoon.

Michael Armstrong can be reached at michael.armstrong@homernews.com.