Wall of Bitterness Divides Del Mar in Battle of the Beach

It was just after dawn when Barbara Shore descended the stairs to the living room of her beachfront home, still rubbing the sleep from her eyes.

Something was terribly wrong. The ocean, normally a friendly neighbor, had surged across the patio outside, sending waves crashing against the wooden walls of her home. As Shore watched helplessly, it rose up, swirling against the large picture window like water inside a fish tank.

There was no time to waste. Between breakers, Shore and her two daughters sprinted outside, snatching potted plants out of the ocean’s reach. Back in the house, she rolled up the family’s Oriental carpets and gathered a few sentimental knickknacks while her husband nailed plywood over the front windows.

Then they fled.

“We stayed up on the hill with friends that first night,” Shore said recently, recalling the devastating storms that rolled along the Pacific Coast in January, 1983. “When we got home, it looked like a war zone. We kept those boards on the windows all winter, for three months. It was like living in a cave.”

It is not the sort of experience Barbara Shore would like to repeat. Nonetheless, the family’s efforts to build a seawall to protect their home from the ocean’s winter fury have so far been thwarted.

The reason? The Great Battle of the Beach in Del Mar.

For 15 years this feud has raged, pitting determined seaside homeowners between 17th Street and the San Dieguito River mouth against an equally committed band of public-beach advocates. Their quarrel, simply put, is over where the beach begins.

According to beach activists, the patios, gardens and seawalls many residents constructed over the years encroach illegally on public sand and should be removed. The homeowners maintain that such structures were built decades ago--before Del Mar was incorporated, in many cases--and maintain that they have acquired rights to the land through perpetual use.

In the middle of the dispute is the City Council, which has attempted to play mediator and come up with a compromise policy that will uphold the beach privileges of inland residents while permitting the Shores and other oceanfront families to shield their homes with seawalls.

The debate over coastal access is by no means unique to Del Mar. Cities from Eureka to Imperial Beach have seen similar tussles over public and private property rights, a particularly volatile topic along California’s scenic and increasingly cluttered coastline.

But in this town, whose very name--”of the sea” in Spanish--conjures images of the beach, the long-running and often bitter battle seems to have broken all records. Indeed, after exhaustive debates, numerous studies and countless committees, Del Mar officials and the two warring factions alike now concede that the beach conflict may well defy a civic solution.

“The beach is Del Mar’s Beirut,” said Scott Barnett, 24, who has been chief beach negotiator in his 2 1/2 years on the City Council.

“It’s a mess, and nobody has been able to fix it. I really believed we could solve it this time around--come up with a solution that would balance the interests of both sides. But now I’m becoming resigned to the fact that it may all end up in court.”

Despite such gloomy predictions, the City Council is pressing forward with a proposed ordinance that attempts to restore order to the oceanfront through the creation of a beach overlay zone. The Beach Overlay Zone Ordinance, known affectionately as BOZO, is scheduled for a council hearing late this year.

Under BOZO, a so-called Shoreline Protection Line would be drawn the length of the beach, in many sections coinciding with private property boundaries. Everything west of the line would be declared public domain, open to all beachgoers. BOZO would also require the eventual removal of the disputed patios and walls, many of which extend into what is proposed as public domain.

The ordinance would, however, permit the construction of walls and other protective devices as far as 30 feet out onto the beach. The walls would be “public” walls, but the homeowners would bear the construction and maintenance costs. Sands east of the walls would be open to all.

BOZO, like every other tonic proposed for Del Mar’s nagging beach problem, has plenty of critics. On both sides.

Homeowners say they could not live with it because, in many cases, the shoreline protection line would cut directly across their patios and landscaping--which activists contend are encroaching on public sand. Under BOZO, such residents--all of those in the block of Ocean Front between 20th and 21st streets, for example--would have to allow public access through their backyards.

“Look, I’m semi-retired, and I frankly do not want people walking, talking or playing ghetto blasters on my patio, right in front of my windows,” said Ted Bear, an insurance agent whose back door is less than two feet from the proposed shoreline protection boundary.

Bill Frey, who also lives in the 2000 block of Ocean Front, faces a worse predicament. His house extends 18 inches over the BOZO shoreline protection line.

“I don’t know why, but they built out over the property line about 70 years ago,” said Frey, who bought the house in 1963 and runs an avocado ranch in Escondido. “So what am I supposed to do, let people walk through my living room? Move my house? I kind of like it where it is.”

Many residents say they will never comply with the BOZO requirement that they relinquish patios that extend beyond the boundary. Nonetheless, the patios would be reviewed by the city on a case-by-case basis, and the city staff would determine the deadlines for removal.

“Asking us to destroy our patios is not offering any sort of compromise,” said Norman Elliott, a Los Angeles lawyer who spends weekends at his beachfront home in Del Mar. “It’s an expropriation of our property rights.”

The beach activists, however, see it quite differently. And they endorse certain aspects of BOZO, such as the requirement that the patios be removed.

“In my mind, those people with the nice patios should be thankful they’ve had the use of public land for so long and at no charge,” said Bill Malone, a computer programmer who has advocated the public beach viewpoint since 1980. “I’m sorry, but all good things come to an end.”

However, Malone and others say they fear that enforcement of the ordinance, which does not specify a deadline for removal of the encroachments, would be lax. They note that the influential beachfront residents might persuade the council to allow the patios to remain for many years to come, thereby denying public use of the territory. In that case, BOZO would be worthless.

“Some of these people argue that they’ve been using their patios for 50 years,” said resident Marshall Ross, who has fought the public beach access battle since the early 1970s. “If that’s the case, I’d say they’ve gotten their money’s worth. Why should the city give them another 10 or 15 years of free rent? Those encroachments should be removed immediately.”

Also disturbing to the beach activists is the prospect of seawalls built 30 feet onto the public beach. “That’s just obscene,” Ross said.

Although some engineering studies have suggested that, to be most effective, a protective device should be 30 feet from the structure its is meant to protect, the state Coastal Commission has opposed that suggestion for environmental reasons.

“The further out a wall is placed, the greater the problem with sand loss,” said Deborah Lee, a staff planner for the Coastal Commission in San Diego. “It is generally our feeling that five feet from the homes is a reasonable distance.”

Beach erosion is exacerbated by seawalls because waves striking the structures are forced downward, causing the surf to scour sand at the foot of the wall and sweep it from the beach.

Seawalls also interfere with the ability of the shoreline to adjust to winter wave action. Sand that normally would be drawn to a sand bar offshore is trapped behind the wall, so that no sand bar forms, and, therefore, there is no natural breakwater to reduce the force of winter waves as they crest onto the shore.

In addition to such environmental hazards, Malone and fellow beach activists say, a wall 30 feet out “creates the impression that everything east of it is private property.”

“Even if there are signs declaring the public’s right to use the area behind the wall, people don’t do it,” Malone said. “It’s like a psychological barrier.”

To support their contention, Malone cited an existing concrete seawall that stands 30 feet from the homes along the coast between 18th and 19th streets. The area between the wall and the homes is open territory, but Malone says people avoid it.

“In the summertime, the beach is packed like Coney Island on the west side of the wall and almost empty on the east side,” he said. “People either feel uncomfortable on the east side or they just assume it’s private.”

Barnett and other council members are well aware that there is opposition to BOZO. They even concede that a legal challenge may be inevitable; the city has started a legal defense fund that already has about $150,000.

“No one will be satisfied with the council’s decision, so we are facing the threat of a lawsuit from one side or the other,” said Councilwoman Brooke Eisenberg, who serves with Barnett on the council Beach Issues Subcommittee. “But we have to take a stand on this and accept the consequences. It’s the responsible thing to do.”

Why is the beach problem in Del Mar, a city of only 5,000, so vexing?

The answer, in large part, has to do with the patchwork of property lines and historic conditions that characterize the wealthy oceanfront neighborhood, home to about one-third of the city’s population and to a few Hollywood stars and prominent political figures.

If the property lines were consistent, easily definable and undisputed up and down the beach, the city would probably have adopted an ordinance to govern the area years ago. But that is not the case. Instead, virtually every block has its own history and a different set of conditions clouding the question of property rights.

The Shores’ lot and most of those owned by their neighbors in the 1700 block, for example, extends westerly to the mean high tide line, a fluctuating point about 40 feet seaward of the homes.

Just up the way, however, the property line nips back in, hugging the edge of most of the houses from 18th to 29th streets. North of there, the private property boundaries again extend out to the mean high tide line.

“The different set of conditions means it’s difficult to just slap down a uniform solution to the problem,” Barnett said.

Perhaps most controversial is the 2000 block of Ocean Front, where nearly every resident has a patio, protective wall or landscaping that crosses the private property line. According to beach activists, all of those encroachments are illegal and should be removed.

The homeowners maintain they have developed “prescriptive” rights to the land because their patios have been in place for decades. Under that doctrine of law, a homeowner assumes rights to a piece of property if his use of the land has been unrestricted for five years.

Elliott and other homeowners in the 2000 block say that their patios, ice plant and seawalls have been on the disputed territory, in one form or another, since the late 1920s, when a development firm known as the Kierkhoff Co. owned a strip of beach from 18th Street north to 29th Street.

“Back then, Del Mar wasn’t a city and had only a handful of people,” Elliott said. “Nobody was concerned about property rights, and nobody thought anything of building a patio onto the beach.”

Elliott said that, through 50 years of use, the homeowners have earned prescriptive rights to use the land.

But the activists tell a different story. They argue that the developer of the oceanfront subdivision set aside the beach for public use and in 1938 transferred ownership of the property to the Del Mar Civic Assn., which maintained it as a bathing beach.

Ross argues that the homeowners there now do not have prescriptive rights to the land because it was controlled by the civic association, which he defines as a public organization. Under existing law, prescriptive rights cannot be acquired from a public entity.

In 1985, this legal debate--key to much of the beachfront dispute--took yet another twist when the civic association transferred deed to the beach land to the City of Del Mar and disbanded. Elliott and his neighbor, Robert Wilson, have filed suit regarding the land transfer on behalf of about 20 other beachfront residents, claiming it was illegal. That action is pending.

Another particularly controversial stretch of beach runs from 24th Street to 27th Street. Homeowners there obtained a temporary permit in 1983 to build a seawall on public beach.

Immediately after they constructed the 480-foot-long wall, the homeowners infuriated inland residents by building brick patios and decorative sidewalks between their homes and the wall--in effect staking claim to the 15-foot strip formerly available to beachgoers. Some built additional perpendicular walls to divide the sandy area into individual yards.

Later that year, the Coastal Commission ordered the wall removed and rebuilt no more than five feet from the private property line. The commission set a deadline and later granted two extensions to the homeowners, but when the third deadline passed this spring and the wall still had not been removed, the commission obtained a court order to force the homeowners to comply. The homeowners may appeal, however, and the wall still stands.

As locals tell it, the Battle of the Beach did not reach epic proportions until the early 1970s. Before then, there were rumblings of discontent among public beach advocates, but no real action.

Around about 1972, Nancy Hoover, a Del Mar council member at the time, gathered a band of activists and began a campaign to rid the beach of structures identified as encroachments.

The group made a lot of noise, but somewhere along the way, the effort fizzled, and the patios, walls and ice plant remain. Since then, each City Council has groped for a solution, believing that its members could find the magical answer.

Nothing, however, has worked.

“We’ve lived here since 1955, and each new council has announced that it was going to make a decision so that we would know how and where we can legally build a wall,” Shore said. “Someday, somebody is going to have to bite the bullet.”

Meanwhile, oceanfront residents are bracing for a stormy winter. Experts have forecast high tides that would exceed those that thrashed the coast during 1983, and Barbara Shore, for one, is worried.

Still, “all we can do is keep the plywood and plenty of bags for sand on hand,” she said. “You can’t fight the ocean.”