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Del Mar Homeowners Lose Appeal to Keep Seawall

October 29, 1987|JENIFER WARREN | Times Staff Writer

In a strongly worded opinion, the 4th District Court of Appeal has upheld a decision requiring a group of oceanfront homeowners in Del Mar to remove a 480-foot-long protective seawall that encroaches on the public beach.

The court's decision, released Tuesday, rejects the residents' argument that they had obtained "vested rights" to maintain the wall in its present location and concurs with the California Coastal Commission that the homeowners "circumvented" the state Coastal Act when they built the structure in 1983.

Jim Bertero, a Los Angeles attorney representing the 10 homeowners who contested an earlier ruling by San Diego Superior Court Judge Douglas R. Woodworth, declined to comment on the decision Wednesday, saying his reaction "is something between me and my clients."

Bertero said he has sent a letter to the affected homeowners informing them of the decision and detailing several options, among them an appeal to the state Supreme Court.

Victory for the Public

Coastal Commission officials heralded the court's decision, saying it was an important victory for the protection of the public's right to beach access.

"I think it's real good news," said Chuck Damm, the commission's South Coast District director. "We are in the business of trying to protect as much public beach as we can and from our perspective, those seawalls were put in too far seaward."

Deputy Atty. Gen. Jamee Jordan Patterson, who handled the case for the commission, said that although the decision has not been certified for publication and thus has no legal, binding precedent value, "it should be of interest to other beachfront homeowners and people concerned about public beach access."

Patterson said that unless the homeowners appeal the decision, they must relocate the seawall in accordance with commission direction "at their earliest convenience."

Case Began 4 Years Ago

The court's 25-page decision marks the latest chapter in an unusual saga that dates to mid-1983, when a group of homeowners between 24th and 26th streets spent $300,000 to build a timber seawall 15 feet onto the public beach. Upon learning of the project, the commission granted the homeowners an emergency permit on the condition that the wall was to be a temporary structure designed to protect their houses from heavy surf forecast for the coming winter.

But soon after the protective device was completed, the property owners began building patios and decorative sidewalks between their homes and the seawall, basically laying claim to the strip of land formerly used by beachgoers. Some erected additional walls dividing the sandy area into individual yards.

Such improvements angered inland Del Mar residents and local beach-access advocates, who argued that the beachfront dwellers should be permitted to build protective walls only on private property.

Officials with the state Coastal Commission also were growing anxious about the developments and in December, 1983, they ordered that the wall be removed and rebuilt no more than five feet onto public property.

Missing the Deadline

During the years that followed, the state panel twice extended the deadline for removal of the wall, partly to accommodate the city of Del Mar, which is drafting an ordinance governing beach encroachments. When the third deadline passed, the commission prepared to sue, convinced the wall had remained in the public domain long enough.

But before the state could do so, the homeowners petitioned Superior Court, asking that the order requiring relocation of the wall be set aside at least until the city's shoreline protection ordinance was in place.

Attorneys for the homeowners argued that the residents were not aware that the emergency permit was temporary and thus did not know their $300,000 wall might ultimately have to be relocated.

Ruling in July, 1986, Judge Woodworth sided with the state, and the homeowners brought the matter to the 4th District Court.

Claiming a 'Vested Right'

In their appeal, the homeowners argued that they have developed "a fundamental vested right" to encroach on public property because they obtained a permit and spent substantial funds on the project.

But Presiding Justice Daniel J. Kremer, with concurrences by Justice William L. Todd and Justice Richard Huffman, said the permit "was an emergency permit, issued without a prior hearing, for a temporary seawall. By its terms, the permit authorized a seawall only for 150 days."

To grant vested rights to a permanent structure based on an emergency permit, Kremer continued, "would undermine the Coastal Act's policies of informed decision-making and public participation and would encourage individuals to circumvent the Coastal Act's procedures as a matter of course. This is what the homeowners are attempting to do in this case."

Patterson said she was particularly impressed with the court's findings on this point, noting that it represents a strong statement in favor of the public hearing process typically necessary for seawalls and other projects along the state's coastline.

"I was pleased with that because these emergency permits cut out the public and hurt the public's ability to have input on these projects," Patterson said. "That's what happened here. The wall went in and had it been allowed to remain, no one would have ever had any say about it. The whole public hearing process would have been averted."

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