Bluff-top homeowners sue to stop fee for sea walls
By Angela Lau

June 30, 2007

SOLANA BEACH ““ A new California Coastal Commission sea-wall fee has been shelved after bluff-top homeowners who were ordered to pay as much as several million dollars sued.

DON KOHLBAUER / Union-Tribune
Bluff-top homeowners in Solana Beach allege that the state Coastal Commission imposed arbitrary fees to compensate for the loss of public recreation space because sea walls are erected on beach land.
They allege that the commission unconstitutionally imposed arbitrary fees to compensate for the loss of public recreation space because the sea walls are erected on beach land. The walls are designed to prevent erosion of the bluffs so the homes on top don’t tumble to the shore.

The commission is no stranger to lawsuits because so many of its decisions involve private properties, and it seldom backs down. But the commission is pulling back this time.

“The difficulty we have is in quantifying a lot of the impacts we know sea walls have on the shoreline. They affect the beach’s profile, interrupt sand that is returned to the shoreline and affect whether people are inclined to go to that beach,” said Deborah Lee, the commission’s San Diego district manager. “It is extremely difficult at this point to put an exact dollar amount on it. We are now moving to look at an alternative.”

That alternative is paying for beach improvements near the sea wall. Those could include stairways to the beach, showers and other amenities. In fact, commission officials prefer amenities to a pot of money that sits around indefinitely, as is the case in Solana Beach.

“Improving access is far better than paying us money. We are trying to compensate for the loss of recreational opportunities,” said Lesley Ewing, a senior coastal engineer at the commission’s San Francisco headquarters.

It’s too late for Solana Beach’s Las Brisas condominium owners. In 2005 they paid $248,000 in recreation-loss fees for their 120-foot-long sea wall on South Sierra Avenue. But several Solana Beach homeowners who are applying for permission to build sea walls could benefit from the Coastal Commission’s decision.

Many homeowners dispute the idea that recreational opportunities are lost. For instance, Las Brisas consultant Bob Trettin argues that the condominium complex’s sea wall takes up land that is unsuitable for recreation because it is right next to crumbling bluffs. But commission staffers say every part of the beach is valuable because beach-goers will walk next to the bluffs at high tide.

The tussle is the latest the commission faces in its mission to preserve the coast.

Historically, the commission has tried to control coastal development through design and location restrictions and by requiring property owners to compensate the state for disturbing natural resources.

In 1994, the commission imposed a sand levy. It pays for sand to replenish eroded beaches based on the assumption that sea walls block waves from eroding the bluffs to make sand.

The Las Brisas homeowners, for instance, paid $22,000 in sand fees in 2005.

The computation of this fee has worked well, and the levy will stay, commission officials said.

The recreation-loss fee began in 2004, when the commission felt that a sand levy was not enough to compensate for the harm that coastal developments do to the coast.

The first group of homeowners ordered to pay the recreation-loss fee was Monterey’s Ocean Harbor House condominium owners. They were assessed $5.3 million for a 585-foot-long sea wall in 2004. The money is supposed to be used to buy a beach close by.

In 2005, the homeowners sued the commission, accusing it of unconstitutionally charging excessive, arbitrary fees. They lost in the lower courts but appealed this year. The case is pending and the sea wall is being built.

The fee has alarmed many homeowners in Solana Beach, where fragile cliffs have produced the largest number of sea-wall applications compared with any other 1½-mile coastline in Southern California.

In 2005, the Las Brisas homeowners became the second, and so far the last, group of property owners to be assessed the recreation-loss fee. They were told to pay $248,000.

The homeowners sued the commission, arguing it has no authority to impose a fee. But they eventually dropped the lawsuit because they did not want to spend more money on lawyers, said Trettin, the Las Brisas consultant.

The homeowners paid the money. which is being held in a San Diego Association of Governments account that also contains the sand fees. The account has accumulated $890,000, but none of it has been spent.

Now Las Brisas homeowners are considering asking for a refund, using a study they commissioned to justify their argument.

The homeowners’ consultants say the Coastal Commission’s experts mismeasured the beach and made faulty assumptions. As a result, the commission should only have charged Las Brisas $30,000. Ewing, the coastal engineer, stands by the commission’s study.

To avoid more money disputes, commission staffers recently began asking homeowners for beach improvements instead. One such project was a beach access built by homeowners in Faria in Ventura County.

Some property owners in Solana Beach also have expressed an interest in building beach improvements, said Gary Cannon, a Coastal Commission planner.

Meanwhile, the city of Solana Beach is picking up valuable lessons from the skirmishes. The city is establishing its own sea-wall fees and will be the first municipality in the county to collect them.

No one who is familiar with the sea-wall issue expects the exercise to go smoothly.

“Who decides the value of the beach?” said Bill Glockner, chairman of Solana Beach’s Condominium Association of South Sierra Avenue, which has had its share of sea-wall dealings with the Coastal Commission. “That’s going to be a difficult question to answer.”