Fixing Mudslide Liability

The rainy season already has arrived, and with it, concerns about landslides. Last weekend, condominium owners in Laguna Niguel who have suffered from the crushing power of nature gathered to exchange memories for a final time. They had evacuated their condominiums at the base of a hill along Crown Valley Parkway following a landslide last March. They must finish clearing out early next month after agreeing to a $9.4-million settlement in a lawsuit.

In land use as in all things, it is important to learn from the lessons of the past so that mistakes are not repeated. In nearby San Juan Capistrano, residents understandably are concerned about a city proposal that would have new homeowners pay for hillside stabilization if their houses are damaged in landslides.

The proposal has been the subject of a continuing public hearing, and it would create an assessment district to cover costs. The city would issue bonds if it needed money to repair slopes, and those bonds would be paid off by a tax on the district’s homeowners.

Around Southern California, as the desirable land has been taken for development, new and creative measures of financing infrastructure have been sought to facilitate development and to find ways of paying for such things as roads, parks and lighting. But to create an assessment district to anticipate the collapse of hillsides would take this concept to a different level. While ensuring that the money would be available to get things done quickly, it raises questions about the oversight of development in risky areas. It makes more sense to have the public interest guarded against poor decisions by developers from the outset.

We know from recent experience that the winter rains have brought a litany of woeful tales about weak hillsides that have given way to mudslides. This problem seems particularly acute in South County, the site of ancient landslides. When the hills go, too often expensive homes--on sites where nature never intended construction--go with them.

The proposed assessments would be required in new developments, and the change appears well-intentioned. It is designed to offer something for everyone: an additional layer of protection to homeowners and an opportunity for developers to build. However, the city would be doing a better service if it were to insist from the outset that developers post sufficient bonds to ensure that repair of failing hillsides will be covered. And oversight agencies could strengthen their resolve to guard the public interest upfront, during the approval process, before it’s too late.

Homeowners no doubt always assume risk: It is their decision whether to invest in a particular property and their obligation to consult geological maps and, if need be, engineers, before making an investment in expensive homes. This is a lesson that has been learned the hard way in Laguna Niguel. But to create a special assessment district potentially would grant relief upfront to the developers who otherwise naturally would be the ones to assume the risk.

The city argues that approving such a district would not allow developers to build in unsafe areas, nor would it absolve them of responsibility. The idea of having a pool of money available to get things repaired while the litigation takes place is attractive enough. But, unfortunately, the door also could be open to irresponsible developers. Prudence is something that a city should be insisting on.