The lawsuit is the latest in the conflict between local residents who oppose seawalls and those looking to protect their oceanfront property from slipping into the sea. Photo by Lexy Brodt
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Bluff-top homeowners file lawsuit against city, state commission

SOLANA BEACH —  A group of bluff-top homeowners are pursuing legal action against the city of Solana Beach and the California Coastal Commission after the entities finalized a fee meant to mitigate the impact of seawalls on local beaches.

The public recreation impact fee is an amount charged to homeowners for the current and future beach area usurped by a seawall — based on the value of a day at the beach. It took the city of Solana Beach about 10 years to develop a fee structure. 

When it went to the Coastal Commission for review, the commission suggested the city double the value of a day at the beach from 33 percent to 67 percent. This brought the fee amount for an average, 2-foot-by-50-foot seawall from about $21,550 to $42,100. The new fee, with suggested modifications, was certified in December 2018.

The Beach & Bluff Conservancy is asserting that the new fee is “excessive and disproportionate,” and therefore it is seeking a writ of mandate and a declaratory judgment from the San Diego County Superior Court. 

The petition, filed by the Jon Corn Law Firm, asserts that the Coastal Commission does not have the power to curtail city authority in coming up with a fee: “The CCC is not authorized to diminish or abridge the authority of the local government,” the petition reads. 

According to Arie Spangler, an attorney with the firm, the Beach & Bluff Conservancy is hoping the court will order the city and the Coastal Commission to “figure out a less excessive fee,” and perhaps compensate the homeowners for what they have paid based on the current fee structure.

The lawsuit was filed in January, and the city was served in early March.

The lawsuit is the latest in the conflict between local residents who oppose seawalls and support the natural replenishment of the beaches via bluff erosion, and those looking to protect their oceanfront property from slipping into the sea. 

Jim Jaffee, a volunteer with the Surfrider Foundation’s Beach Preservation Committee who has been actively involved in advocating for a public recreation fee, called the lawsuit “disruptive.”

“They are destroying public land with these seawalls,” he said, calling the Coastal Commission’s modified fee “in the range of acceptable.” 

As part of the study used to calculate the fee, the Coastal Commission doubled the city’s value of a beach day from about $19 to about $35.

“It’s not unreasonable for someone to say going to the beach for a day is worth $40,” Jaffee said, noting that the city’s original fee was assessed “at the extreme low end.”

The city has been attempting to adopt a public recreation fee since 2007. According to a Nov. 13 staff report, the city put together a team of economists, engineers and scientists in 2010 to conduct a fee study — which withered due to lack of funding. 

After the city received $120,000 in Local Coastal Program Planning Grant funding from the Coastal Commission, it was able to update the study and release it for public review. It was submitted to the Coastal Commission for approval in April 2016.

In the interim, the city collected a $1,000 per linear foot deposit fee for the walls. 

The Coastal Commission came back to the city with 16 suggested modifications — which in addition to doubling the public recreation fee, eliminated a proposed credit to property owners for public safety benefits produced by seawalls, and eliminated the ability of property owners to pay mitigation fees overtime through a payment plan, among other changes. 

The city approved the fee, with modifications, at the Nov. 13 City Council meeting, “as painful as it is,” said Solana Beach Mayor Dave Zito during the meeting. The council was concerned that if the city rejected the modifications, the Coastal Commission might come back with a higher fee down the road. 

The Beach & Bluff Conservancy and its attorneys argue that the new fee does not take into account the public benefit provided by a seawall.

Jon Corn, whose law firm represents the Beach & Bluff Conservancy, said that seawalls protect stretches of the beach from bluff erosion — a “demonstrated safety benefit” that Corn said wasn’t fully intuited into the city’s study.

“The whole premise of (the fee) is that the beach is so valuable to the public,” Corn said. “But at the same time, how useful or valuable is a beach that if you’re there with your kids, you could be injured … you could argue that the portion of the beach in the danger zone has no public value.” 

When it comes to constructing a seawall, homeowners are required to pay a sand mitigation fee and a public recreation impact fee in order to obtain a permit for construction. The permit lasts for 20 years.

Chris Hamilton, chairman of the Beach & Bluff Conservancy, said that blufftop owners “accept the fact that they’re going to have to pay all the costs of protecting their property.”

He said that although members of the Beach & Bluff Conservancy thought the public recreation impact fee developed by the city “had not been quantitatively handled correctly,” they opted not to speak against it at the time.

“You could surmise the owners felt that (the fee) was insult to injury, but was something they could live with,” he said.

However, he called the Coastal Commission’s choice to double the fee “arbitrary.”

According to Hamilton, there are about a thousand homeowners — largely condominium owners — affiliated with the conservancy.

The date for the hearing has not yet been set.