Dwight Worden | Seaview Avenue
In last month’s issue we told the story of how beach encroachments were removed by a citizen’s initiative which voters approved overwhelmingly. This resulted in the City Council enactment of the Beach Overlay Zone Ordinance. Dwight Worden was a key figure in the entire process and provided legal representation to citizens and the city throughout the process. Below are some of Worden’s recollections of what happened.
1. The encroachments had appeared over decades in Del Mar, dating back to before the City was incorporated in 1959. During these early years, there were so few beach users and so much sand, even though many of the encroachments were never legally permitted, it drew little attention or concern.
2. In the 1970’s we began to see serious sand loss and we experienced some severe winter storms that did damage to encroachments and some houses. It was in the storms of the 70’s and early 1980’s that much rip rap was placed on the beach by owners, sometimes overnight, without any permits or approval, as they attempted to protect their homes. Essentially all of this rip rap was improperly placed, i.e. it was dumped on the beach when it needs to be engineered, sloped, fit together, and buried to be effective.
3. While the owners’ claims were for emergency protection, it was clear that for some another motivation was to enhance their privacy by privatizing public property. As beach use increased, some owners didn’t like having the public so close to their homes.
4. When the South Coast Land Company did the original beach subdivision creating the streets and beach front lots in the early 1900’s, it created a 15 foot wide public sidewalk running on the beachfront side of these lots. It was in the early days of few cars and was intended to be a way for folks to get from their lots to the train station on foot. This sidewalk was public. In most blocks the private property ended at the sidewalk, except in Sandy Lane and in the 17th street block where the lot lines were the mean high tide line. So, the encroachments in most cases were across the public sidewalk and beyond onto the beach.
5. The city tried to help beach front owners protect themselves against storms and wave attacks and actually got coastal permits and graded a sand berm in front of beach front homes for several years during the winters in the 1970’s and 80’s. And, the city tried the long guard tube, an experimental beach front protective device, but it was punctured by a tractor and failed. What the coastal engineers recommended was either engineered rip rap or a re curved state of the art seawall. The coastal commission wouldn’t sign off on the rip rap option because it extended too far onto the public beach (it had to go a certain depth and then out about 30 feet in most cases, with a base of filter cloth and other technicalities), so what ended up in the Beach Protection initiative (the BPI) was the requirement for a state of the art re curved seawall on private property, or at most with a 5 foot encroachment where circumstances warranted. In most cases what got built were seawalls with a 2.5 foot encroachment, i.e. 5 foot wide walls centered on the BPI line.
6. What had been dedicated to the Del Mar Civic Association, the group of beach front owners, as part of the original subdivision was the “lot” west of the sidewalk, i.e., the beach itself to the mean high tide line. This lot was later deeded to the city by the Civic Association. And, it was discovered that the mean high tide line was actually way inland of where it was shown on the subdivision maps, in some cases running through people’s living rooms! So the compromise reflected in the BPI and in lawsuit settlements was that beach front owners would give up their claims beyond the BPI line, and the City and state lands commission would accept the BPI as the dividing line between public and private property, giving up any public claim inboard of that line based on a claim that the mean high tideline had migrated into someone’s living room.
7. As beach use demand rose in the 70s and beyond, and the beach continued to shrink from sand loss, and things got to the point where sections of the beach could not be passed by the public at high tide—portions of the beach were either armored or blocked. This lack of access didn’t sit well with many.
8. The beauty of the BPI was that it avoided litigating where the property lines were, as they were very hard to determine, with shifting mean high tide lines, poor old records, etc. Instead, the BPI took the approach of creating a setback line, not a property line. It drew a line in the sand and said in effect--it doesn’t matter where the ownership line is, you cannot build beyond this line. Just like we all have a front yard setback in which we cannot build even though we own the ground, the BPI created a beach front setback line. The BPI allowed encroachments across this setback line of up to 5 feet if the owner could prove it was engineeringly necessary (it sometimes was to anchor proper footings, etc. for the seawall) and if the owners would help pay for protection across the public street ends. The BPI called for rent payments for all encroachments but the city accepted street end seawalls in lieu of rent. The city also encouraged owners in a given block to work together so we would get full block solutions, including street ends. In most cases this worked and in a few cases the city facilitated assessment districts to help the owners pay over time. Under the BPI the city also gave other inducements to comply--expedited permit processing, fee waivers or reductions, the city did the CEQA review if the owner proposed a conforming seawall, etc. The idea was carrot and stick--remove your encroachments and build a conforming seawall and the city will help. In most cases it worked as owners complied, sometimes reluctantly, but when they figured out compliance was cheaper than litigation, and learned that their team was losing all the lawsuits, most fell in line.
9. One aspect of the BPI that was important was its provisions for abatement of non-conforming encroachments. It declared everything--walls, patios, living rooms, rip rap, whatever, that was across the line to be “non-conforming” and subject to abatement after a reasonable period of time to recoup the economic value of the encroachment up to a maximum of ten years. Importantly, the time period for measuring economic value went back to the time of installation. Most of the encroachments were so old (more than 10 years) that they were subject to immediate legal abatement. It was through this abatement process that the city was able to remove many of the encroachments from the beach, after about a dozen lawsuits challenging the BPI, all of which the city won or successfully settled.
10. The BOZO (Beach Overlay Zone Ordinance) was actually the name given to the draft ordinance the City Council was working on. The name of the citizen initiative was the Beach Protection Initiative, or BPI.
11. I think most beach front owners are now happy, or at least accept the outcome. Yes, some lost property they thought was theirs, but they now have protection from storms that works in the form of properly designed and installed seawalls, and they have clear title to their property on the inboard side of those walls with no worry that a claim might be made inboard of that. There are still a few sections of beach to address but the vast majority of the beach that had been covered or blocked by encroachments, covering many acres, has been returned to the public through successful implementation of the BPI.