Proposition D Called Bane, Boost in Fight for Del Mar Beaches

Robert S. Strauss is the kind of beachfront property owner that the Del Mar beach preservationists fear most.

He’s wealthy, he’s prepared to fight to safeguard what he sees as his inalienable property rights, and, most frightening of all, he’s an attorney.

As former chairman of the Democratic National Committee, Strauss is spending a good deal of time this election year trying to make sure a Democrat is elected President of the United States.

He serves on the board of directors of five major corporations and heads one of the most influential and politically well-connected law firms in Washington, involved in matters of high finance and international trade.

Despite these distractions, however, he is keeping a careful eye on Proposition D on the April 12 ballot in Del Mar. The measure would require beachfront owners like Strauss to tear down any seawalls protruding more than five feet westward of what is called the shoreline protection line.

Prepared to Fight

The seawall at the Strauss’ home--where he and his wife spend several weeks every summer during the Del Mar racing season--sticks out about 18 feet, and Strauss has taken part in the fruitless negotiations between property owners and preservationists.

In a Texas drawl that is said to belie a bite like an angry crocodile, Strauss is not shy about warning what will happen if voters favor Proposition D.

“I love Del Mar, but I tell you that the city and the private owners are going to spend a fortune in legal fees if this passes,” he said in a telephone interview. “I’m a pretty good lawyer, and I can assure you that this is going to be in the courts for the next 10 years.

“I think it’s a shame. People work too hard for their money to spend it on lawyers.”

Threats about lawyers and lawsuits are common in Del Mar, which possesses the most-debated, most-studied, most-litigated one-mile stretch of beach in San Diego County. There have been pro-seawall suits and anti-seawall suits dating back to at least 1951.

Beachfront owners say the seawalls are necessary to guard their property from winter storms, but activists counter that owners have no right to wall off part of the public beach to provide private protection.

“The beach issue has been a study in pressure politics,” said Bud Emerson, a City of San Diego management consultant and self-professed “beach rat” who heads the pro-D campaign. “Every time the City Council came close to a decision, you would see the lawyers show up and flex their briefcases.

“The beachfront owners are quite willing to bankrupt the city to protect their patios.”

Aligned With Coastal Panel

The glory of Proposition D, Emerson asserts, is that it immunizes the city from the litigious sting of Strauss and other homeowners by aligning the city with the California Coastal Commission’s court-approved standards for beach protection and qualifying the city for legal aid from the state Department of Justice.

As the smallest city in the county, bereft of an industrial or commercial tax base, Del Mar is perennially cash-poor, with an annual budget of less than $4 million.

In that kind of environment, the threat of enormous legal bills, potential damage awards and individual liability has admittedly had a sobering effect on even the most pro-public access council member.

Rather than wait for the council to finish work on a Beach Overlay Zone Ordinance, Emerson and other preservationists engaged in a successful signature-gathering to qualify their own measure for the ballot. Work on the BOZO had been slow and fitful.

One of the alternatives to the overlay ordinance would have legalized all walls up to 30 feet westward of the shoreline protection line--a boundary that corresponds roughly with the property lines from 17th Street north to the mouth of the San Dieguito River. Many walls are 10 to 15 feet west of the line; some as far as 40 feet.

Proposition D is more restrictive, calling for all walls, shrubbery, ice plant and protective boulders more than five feet west of the line to be removed, after allowances for public hearings and an amortization period based on the cost of the wall and date of construction.

Boosters say it will restore 70,000 square feet of beach to public use, nearly the size of two football fields. Opponents say there is plenty of beach for the public without tearing down the walls.

New seawalls would be allowed only up to five feet west of the line. Further, no residential construction, even if a house burned down, would be allowed within 15 feet east of the line.

A Hard Line

The terms are tough--even some preservationists were once thinking of a more lenient approach--but they fit the standard upheld in an appellate court decision siding with the Coastal Commission in its recent suit against a group of Del Mar beachfront owners.

“We think the city is in the best defensive posture it can be when it lines up with the Coastal Commission 100%,” Emerson said.

What’s even better, because the measure will be adopted by the public rather than the council, individual council members need not tremble under the threat of personal liability from angry beachfront property owners, the pro-D side says.

The California Coastal Act, adopted in 1976, calls for the attorney general to assist any city fighting to maintain its beaches if its beach plan is part of an overall state-mandated Local Coastal Program, a set of zoning and land-use regulations that, in Del Mar’s case, would cover the entire city.

Stuck on the beachfront issue, Del Mar has never adopted a Local Coastal Program. But the chances appear good that once that issue is resolved--either through Proposition D or a council-adopted BOZO--the rest of the program will be quickly assembled.

Peter Kaufman, deputy attorney general who serves as counsel to the San Diego region of the Coastal Commission, said that he has not yet reviewed Proposition D and that any decision on what assistance the attorney general would provide might depend on the kind of legal challenge mounted.

“It is hard to say whether we would defend it,” Kaufman said. “Even if we agree with its goal, there may be legal infirmities with it. We can’t simply say yes or no.”

The disputed seawalls are an architectural and legal hodgepodge, much like the property lines, which vary from section to section. One third of the 90 owners are said to be encroaching on the public beach in one way or another.

Some of the walls were built decades ago. Others were built as temporary structures in 1975 and never torn down.

The most recent and controversial wall was built in 1983 when 10 homeowners, fearing an onslaught of winter storms, spent $300,000 on a 480-foot-long wall stretching between 24th and 27th streets, 15 feet onto the public beach.

The Coastal Commission granted an emergency permit on the proviso that the wall be torn down after the storms subsided. Far from tearing it down, owners built patios and decorative sidewalks, in effect, laying private claim to about 7,200 square feet of public beach.

Last October the 4th District Court of Appeal agreed with the commission that the wall should be torn down. The court affirmed the commission’s contention that no wall should be built more than five feet west of the property line.

Attempting to prove that they were merely taking up the beach preservation cudgel from the Coastal Commission, pro-D forces incorporated the same five-foot rule in their ballot measure, but it remains to be seen how that standard will hold up in potential cases not as clear-cut as that of the wall between 24th and 27th.

Also included in Proposition D is an amortization schedule that would allow an illegal wall, depending on cost, to remain standing for up to 10 years from the date it was constructed.

“It is simplistic to say the ordinance is or is not defensible,” City Attorney Roger Krauel said. “It has a lot of aspects to it. . . . It would depend on how the law is applied. Each of these homes (on or near the beachfront) has its own story, and there are 90 homes in the naked city.”

Tall or Short?

There are disagreements over which kind of wall provides the best protection both for individual homes and the beach’s supply of sand: Lower walls farther from the property, or taller walls closer in. The latter, of course, tend to block the owner’s ocean views.

Beachfront owners say their privately built and maintained walls provide a first-line of defense for the low-lying neighborhoods to the east without hogging the beach.

“If you didn’t have our seawalls and rip-rap, I would dread to think what would happen to all those homes between us and the railroad tracks,” said owner Ted Bear, a semi-retired insurance broker. “I would really hate to see the city vulnerable to those kind of losses.”

Beach preservationists say the owners have been encroaching on public property just as flagrantly as someone who blocks a public sidewalk. They say owners could better protect their homes by boarding up windows and erecting temporary barriers when a storm approaches.

“We’re caretakers, not owners, of that beach,” Emerson said. “It galls me to think that future generations will look at us and ask why we didn’t act to preserve the beach when we could.”

Councilman Scott Barnett, finishing a stormy four-year term on the council, cracks that the beach is Del Mar’s answer to Beirut, the site of endless warfare and passionate intransigence.

“I’ve had over 100 public meetings on beach issues in the past four years--maybe thousands of hours, not including hours spent researching, studying and meeting with landowners and beach activists,” Barnett said. “It’s madness, and the initiative is further madness.”

To Barnett, Proposition D strips away private-property rights for no reason, leaves low-lying property behind the beachfront homes vulnerable to flooding, and may require removal of a seawall built to protect a sewage line.

“Bob Strauss told me two years ago, when we were negotiating, ‘You know, Scott, if the extremists take over, it will make our litigation easier,’ ” Barnett said. “This (Proposition D) is a lawyer gravy train, a dream come true.”

Proposition D backers are similarly unenamored of Barnett, particularly after he held a City Hall press conference in late January to blame the preservationists for storm-damage to the Poseidon Restaurant on grounds that they had worked to keep the owner from receiving a permit for a protective wall.

“Scott Barnett is a jerk,” Emerson said. “He is a disgrace as a council member. He acts more like the agent of the property owners than someone working for the public.”

Meanwhile, Strauss, who also owns homes in Washington, Dallas, and Florida’s Bal Harbour, says he’s ready to join his fellow beachfront owners and contribute to a legal defense fund against Proposition D.

And he sighs that reaching a truce in Del Mar is as hard as reconciling the belligerents in the Middle East. He should know: Under President Carter he was both a special trade representative and roving Middle East ambassador.

“Del Mar is the loveliest place imaginable,” Strauss said. “It’s so sad to see a community tear itself apart with fighting. There just seem to be people in Del Mar who try to find something to fight about every single day of the year.”