Wave of Suits Hits Del Mar Over Seawall Law

Like swallows returning to Capistrano, beachfront lawsuits are again flocking to Del Mar City Hall, attacking the city’s tough new ordinance requiring that seawalls on public property be torn down.

Four lawsuits have been filed in Vista Superior Court against an ordinance adopted by voters in April, requiring owners to remove any wall that juts more than five feet onto the public beach.

The owners assert that the ordinance illegally seizes their property without compensation. Each owner claims to have already suffered $1.5 million in damages, even though the walls remain intact.

The City Council, which has yet to order the removal of a single wall, has hired well-known environmental attorney Dwight Worden, who helped a citizens group draft the seawall ordinance, to assist City Atty. Roger Krauel in defending the city.

The lawsuits come just as the council is set to begin adopting procedures to determine how fast and how vigorously the seawall ordinance will be implemented.

Testing City Council’s Mettle

The legal challenge will test whether the council has the political fortitude to carry out the seawall ordinance while simultaneously defending it in court.

It will also indicate whether a selling point used by proponents during their campaign last spring proves to be true: that the city need not fear million-dollar lawsuits because the state attorney general will defend the city’s interests.

Opponents had warned that the ordinance could bankrupt the city with legal bills. As the smallest city in San Diego County, bereft of an industrial tax base, Del Mar is particularly vulnerable to legal costs.

Mayor John Gillies declined Thursday to speculate how the lawsuits will affect the city’s vigor in enforcing the ordinance.

So did Councilwoman Gay Hugo, who was elected in April, partly on the strength of her support for the Beach Preservation Initiative. She is on the council committee devising implementation procedures.

Suits Shouldn’t Deter City

“I really don’t think it’s appropriate to discuss any aspect of the lawsuits or whether or not they will have any impact on the ordinance,” said Hugo, an attorney.

But Bud Emerson, a leading proponent of the initiative, said the lawsuits should not deter the city from moving full-speed ahead in beginning to return up to 70,000 square feet of beach to public use. He predicts that the first walls will come tumbling down in summer, 1989.

“We certainly expect it (the ordinance) will be vigorously enforced,” said Emerson, a management consultant with the city of San Diego.

“We expected a challenge,” he added. “We knew that there would be people who have convinced themselves that they have a right to private use of public property.”

Councilwoman Brooke Eisenberg, who serves with Hugo on the beach committee, agreed with Emerson and predicted that the city will not back down. The committee met Thursday at City Hall.

“The ordinance carried the city, and now it’s time for the city to carry the ordinance,” she said. “We’re zooming ahead.”

Carlsbad attorney Eric T. Lodge, whose firm is handling all four lawsuits for the property owners, all of whom live in the 1700 block of Oceanfront, says his clients’ case differs from that of other beachfront owners because his clients own land to the mean high-tide line. That would put the walls well within their private property.

“Our position is not that different from the owner of an inland piece of property who is told by the city that he cannot build on half of his property,” Lodge said.

The owners--William and Judith Angell, Andrew and Mary Kay, Stuart W. Shore and A. W. Ham Jr.--say they would lose sizable portions of their lots if required to pull down their seawalls.

Ham, for example, says he would lose 3,150 square feet because the public would suddenly have access to what has been his back yard.

The suits say that, even if the ordinance is eventually struck down by the courts and never enforced, the owners have suffered damages because of the “temporary taking” of their property.

The claim of ownership to the mean high-tide line, however, is disputed both by local beach preservationists and the California Coastal Commission.

Activists say that a 15-foot-wide public easement granted decades ago through the property makes the seawalls impermissible, and commission staff members say it is impossible to prove clear title to mean high tide.

Emerson notes that some beach activists wanted the “protection line” along the 1700 block of Oceanfront drawn 7 feet farther east than the line that was finally submitted as part of the initiative.

“They (the owners) got 7 feet more than a lot of us thought they deserved,” he said.

Worden, who served as Del Mar city attorney from 1977 to 1983, when the city fought unsuccessfully to block construction of North City West, said he has not yet had a closed session with council members to discuss strategy in the seawall lawsuits.

He was confident that the city can defend the ordinance even without assistance from the attorney general.

“If the attorney general were to help us carry the laundry, that would be frosting on the cake, but Del Mar is prepared to defend it on its own,” Worden said. A formal response to the lawsuit is required next month.

The California Coastal Act, adopted in 1976, calls for the attorney general to “provide such legal assistance as its resources permit” to help any city fighting to maintain its beaches--provided that city’s beach measure is part of an overall Local Coastal Program.

But the Del Mar council has yet to approve such a program--a set of zoning and land-use regulations that, in Del Mar’s case, would cover the entire city--for the commission to consider. Eisenberg said she hopes an LCP is approved by the end of the year.

Lawsuits over the mile-long stretch of Del Mar beach between 17th Street and the mouth of the San Dieguito River date at least from 1951. The suits have come in all varieties: owner vs. owner, owner vs. City Hall, commission vs. owner.

In fact, one of the pieces of property involved in the current suits was the subject of the 1951 lawsuit under a different owner. That suit ended with a judge ordering a private patio uprooted as an encroachment on public property.

Many of the 90 beachfront property owners say they need the seawalls to protect their houses from winter storms. Activists reply that the walls simply turn the public beach into private property and that walls closer to the property line would be just as effective in repelling high waves.

The Beachfront Protection Initiative was placed on the ballot after a signature-gathering drive by beach preservationists. They had become convinced that the council was virtually paralyzed by the threat of lawsuits and would never adopt an adequate ordinance.