January 19, 2024 In News

How a homeowners association lawsuit could shape the future of the California coast


JANUARY 18, 2024

The fate of California’s coast may hinge upon the outcome of a contentious ongoing lawsuit in which a small group of homeowners is battling to build a sea wall that the state has refused to approve.

Rising sea levels are threatening to eat away much of the state’s 1,100-mile shoreline, while potentially destroying many of the homes and businesses that have been built alongside it.

In a case that has pitted public beaches against private property rights, the resolution of a regulatorresidential rift could help clarify who is allowed to shield their properties from this encroaching danger — and in doing so, make a far-reaching impact on the future geography of the state’s bluffs, beaches and coastal communities.

“It would affect in a significant way how people think about the rights they may have to build sea walls and shoreline structures,” Charles Lester, director of the Ocean and Coastal Policy Center at the University of California, Santa Barbara, told The Hill.

The case in question revolves around whether a cohort of bluff-side residents in Half Moon Bay — a city in San Mateo County about 20 miles south of San Francisco — should be allowed to build sea walls to protect their homes from the impacts of erosion.

The petitioners applied in November 2018 to build a 257-foot concrete sea wall, as well as a public access staircase that would replace existing emergency boulders.

Their proposal, as recently reported by the San Jose Mercury News, sought to protect Casa Mira Homeowners Association condos, a nearby apartment building, a California Coastal Trail segment and a sewage line. But the Coastal Commission rejected the requests in the summer of 2019 and only authorized a 50-foot sea wall for the apartment building, despite internal staff recommendations to approve the entire plan.

Following that rejection, the homeowners filed a lawsuit that received the final approval of a county court judge four years later. The agency filed an appeal in September, however, extending the litigative labyrinth.

The homeowners, and the judge who ruled in their favor, contended they had a right to protect their property under California law.

But both Lester and other coastal policy experts warn that building sea walls or other protective structures pose their own risks. And from a state regulatory perspective, the Coastal Commission pointed to the need to protect the state’s coast more broadly.

Sarah Christie, legislative director of the commission, said in an emailed statement that the agency cannot comment on active litigation. She stressed, however, that sea level rise has become “the real force that’s shaping the coast.”

“The Coastal Commission is focused on supporting coastal resiliency so that California still has livable coastal communities, public beaches and healthy coastal ecosystems,” Christie added.

Coping with “chronic loss”

Regardless of the litigative and regulatory outcomes of the ongoing lawsuit, the fact remains that California’s coastline is rapidly eroding — including the bluffs of Half Moon Bay.

“I was just there last week, and those beaches around there are incredibly eroded right now,” Sean Vitousek, a research oceanographer at the U.S. Geological Survey (USGS), told The Hill.

“There’s almost no beach from that area going further south,” he said. “It’s a pretty vulnerable area.”

California’s coast in general is so vulnerable that between 24 and 75 percent of the state’s beaches could be entirely eroded by the end of the century if the process continues unimpeded, according to a study led by Vitousek this past spring.

Just a single meter of sea level rise could drown a quarter of the coastline, while a more extreme, 3-meter surge could wipe out three-quarter of these beaches, per the study, a partnership between the USGS and the University of New South Wales in Sydney.

Separate research from California State University showed that not only might most beaches disappear, but their elimination could exacerbate environmental justice concerns.

For example, a meter of sea level rise in San Diego County could destroy more than a quarter of picnic areas, half of lifeguard towers and 15 percent of public restrooms along the coast.

Urban planners face a complex decision when it comes to deciding whether to allow erosion to occur uninhibited or to try to stop it in its tracks.

When eroding naturally, beaches maintain their width and retreat together with the shoreline — serving as a “buffer” between the ocean and the back of the shore, Lester explained.

But when a sea wall interrupts this process, that movement changes.

“The beach itself has nowhere to go as the water and the shoreline continues to erode,” Lester said. “In the presence of a sea wall, eventually the beach disappears entirely.”

Under these “passive erosion” conditions, the waves encroach so close to the fixed-back sea wall structure “that there’s no beach that can survive,” Lester explained.

Some sea walls also trap sand behind them, while others accelerate “active erosion” — an effect that scientists believe might occur when the structures reflect waves that would have otherwise dissipated, according to Vitousek.

“There are relatively few cases in which sea walls can help prevent erosion,” he said.

Lester echoed these sentiments, acknowledging that these structures do have the ability to protect homes “for a while, depending on the specific circumstances.”

“But if you like beaches, sea walls aren’t necessarily a good thing,” Lester added.

As far as Half Moon Bay is concerned, Vitousek and his colleagues painted a stark picture for this coastal city and its future, visualized via metadata published alongside their study.

The data, accessed on Google Earth, shows that the city is very much at risk of losing most, if not all, of its beach. A second mapping tool, called CoastSat, relayed similar predictions.

From 2005 to 2023, the beach area retreated by about 300 feet, with whitewater visibly replacing expansive sands, according to time-lapse images derived from the metadata.

Asked if Half Moon Bay’s beach disappearance is inevitable, Vitousek predicted that the combination of sea level rise and a permanent sea wall could make it so.

“If these structures were removed, in theory, then you may have a beach,” Vitousek said, noting that the whole shoreline system could “migrate landward behind the freeway.”

If city planners were interested in reviving “historical beach widths,” on the other hand, they would need to conduct considerable “beach nourishment” and dune restoration efforts, he noted.

“You can see kind of a chronic loss,” Vitousek said.

A right to property protection?

At the heart of the Half Moon Bay case is Section 30235 of the 1976 California Coastal Act, which allows for natural shoreline alterations if they serve “to protect existing structures” from the threats of erosion.

In their July 2019 rejection of the initial construction request, the Coastal xommissioners determined that neither the Casa Mira Homeowners Association condos, the sewer line nor the coastal trail were entitled to a sea wall as the homeowners proposed under that clause.

Section 30235 became “the key issue” up for debate, San Mateo County Superior Court Judge Marie S. Weiner wrote in her 2023 decision, in which she ruled in favor of the homeowners. Deeming the clause “unambiguous,” she accused the agency of trivializing private properties and allowing them to “deteriorate and collapse.”

“This is an unreasonable interpretation of the Coastal Act,” she concluded.

Jeremy Talcott, an attorney for the Pacific Legal Foundation — which has previously sued the Coastal Commission over property rights — said the Coastal Act has always “included a right for landowners to protect existing structures with sea walls.”

“The Commission has decided to unilaterally remove that protection because of their preference that those homes effectively get washed away,” Talcott said.

Lester, however, argued that such interpretations of the act guaranteeing an inherent right for property protection could make sea wall eligibility too flexible.

A Half Moon Bay sea wall approval, he explained, could set a precedent along the coast for places keen to follow suit.

Lester qualified his concerns with the fact that most owners who built homes in recent decades waived their rights to protection, as a condition of their permits.

“The Coastal Commission was trying to, in a sense, get ahead of that issue,” said Lester, who headed the agency from 2011-16.

He recognized, however, that “there’s some uncertainty” as to how these waivers would hold up in court. But the contracts subject to the most legal ambiguity, he assumed, would be those approved before permits included explicit prohibitions on sea walls.

“There was a lot of development approved between 1977 and the early 1990s,” Lester said.

With so many properties arguably eligible for protection and such an uncertain regulatory environment, Lester expressed fears that wealthier residents could try to exploit the situation.

“It’s often the case in California, where you’ve got homeowners that have a lot of resources — they don’t hesitate to use the legal system to further their interest,” he said.

But Talcott stressed that property rights protections are guaranteed by California’s Constitution — and therefore questioned whether a state agency could compel landowners to relinquish those rights.

“The Coastal Commission should not be forcing landowners to waive those types of rights as a condition,” Talcott said. “But certainly, once an individual has, that’s something that they’ve consented to — and so there’s just different issues at play.”

Protections amid precarious projections

For the time being, it will be in the responsibility of the courts to steer California’s coastal future as the threat of erosion looms.

Which courts will assume that role, however, remains up in the air. As for the Half Moon Bay case, Lester said he couldn’t predict in whose hands the lawsuit might end up and whether it could land in the highest state or even federal chambers

In the 1987 U.S. Supreme Court case Nollan v. California Coastal Commission, the justices decided that a regulation requiring homeowners to preserve public beach view access was unconstitutional. That ruling against the coastal commissioners, Lester explained, had “a chilling effect on their decisionmaking going forward.”

Lester said he could envision certain parties escalating the current case, calling out the Pacific Legal Foundation for “pressing private property interests through the courts.”

Talcott said he would not be surprised to see this “very important question of state statutory interpretation” end up in the California Supreme Court, but he views the federal option as a less likely destination.

Regarding his organization’s interest in private property, Talcott said he viewed its mission as “protecting” rather than pressing these rights — citing a core tenet of constitutional values.

Tom Roth, an attorney for the Casa Mira condo owners, initially agreed to an interview with The Hill about the case but ultimately declined to speak about the subject.

Protecting both public beaches and the interests of private properties from the impacts of erosion may be a formidable task, but Lester urged officials to harness existing planning structures to identify both vulnerable coastal conditions and the mechanisms available to push back development.

California’s Legislature, he noted, has previously considered providing low-interest loans to jurisdictions interested in purchasing and removing at-risk properties.

The related bills — S.B. 83 and S.B. 1078 — earned the approval of the Legislature in 2021 and 2022. Gov. Gavin Newsom (D) vetoed both, however, contending that they failed to “comprehensively address the cost” of the proposed buybacks.

Lester credited the idea behind the legislation with being “interesting and important” but raised similar questions about “who’s getting stuck with the bill.”

He argued that the state should instead be promoting programs that would “unfold over decades” and help homeowners adjust to the idea of “managed retreat” — defined by one expert as “the purposeful, coordinated movement of people and assets out of harm’s way.”

“When people talk about managed retreat, a lot of people react and seem to think, ‘Oh, well, you’re telling me I have to remove my house tomorrow and move away,’” Lester said.

Such policies, however, could be implemented over time and involve a mix of tactics, including a loan program that accounts for equity issues, according to Lester.

To keep coastal areas livable, he urged officials to embrace a long-term community outlook — formulating redevelopment plans based on natural erosion projections. Doing so, he said, could help cities “make investments that are sensible for a certain period of time.”

Vitousek, of the USGS, likewise emphasized the magnitude of the ongoing case, noting the fragile balance that coastal managers must maintain amid “competing public versus private interests.”

“The future sea level rise projections that are expected in the next 80 years are pretty significant in terms of the erosion,” he said. “And based on the structure of the California coastline, there isn’t a ton of accommodation space.”

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