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 City of Solana Beach
Section 2
Shoreline and Coastal Bluff Management Strategies Draft MEIR
Project Description
recedes, the landward owner would lose acreage to the State. (See Titus, supra, at pp. 1364-
1371.).
In the absence of 30235, a blufftop property owner unhappy with the Planned Retreat
Alternative might face a strong argument that the "law of erosion" and "Public Trust Doctrine"
put him/her on notice that, as the bluffs eroded, his or her property boundary would recede
accordingly. The property owner might counter by arguing that San Diego County zoning that
permitted bluff top development created "reasonable investment-backed expectations" on which
the original developer relied, and that such zoning, once in place, created a continuing
governmental duty to protect property owners "lured" into blufftop areas. (County zoning
governed the City prior to its relatively recent incorporation.).
Section 30235 makes the legal issues even more complicated. Arguably, the State of
California, by enacting that statute, superseded the common law of erosion and the traditional
Public Trust Doctrine by creating a statutory policy explicitly intended to protect landward
property owners from shoreline retreat.
It could also be argued that the City's Shoreline
Protection Ordinance also created investment-backed expectations; but the relative late date of
enactment of the Ordinance (1994) makes it far more likely that blufftop developers and owners
relied to a much greater degree on the original County of San Diego zoning and on 30235,
which has been in place since 1976. It is not clear whether, under the circumstances, the City
could be held responsible for actions taken by the County prior to incorporation. The City has
certainly inherited conditions created by County zoning.
In laying out these various arguments, neither the Solana Beach City Attorney nor the City's
outside legal counsel intend to predict the outcome of a takings case that might be filed after
implementation of the Planned Retreat Alternative. Notably, if the City were to choose to no
longer issue permits for shoreline protection, 30235 would remain on the books absent
legislative repeal, and thus would likely protect blufftop owners who otherwise could lose their
homes or backyards. Absent such erosion, presumably no takings cases would be filed against
the City.
In the event that both the State and the City, on parallel tracks, implement the Planned Retreat
Alternative by repealing 30235 and by modifying or repealing the City's Shoreline and Coastal
Bluff Protection Ordinance, then property owners could file actions against either the State or
the City or both. Such landowners, as noted earlier, would likely argue that repeal of the
previously-protective provisions would lead to a complete loss of the economic use of their
property, and that compensation is also required because the landowners relied to their
detriment on those protective policies (and thus had "reasonable investment-backed
expectations" that the protections would remain in place). The State and City could invoke the
law of erosion and Public Trust Doctrine to support an argument that such property owners
should have known that they, not the seaward landowner, would have to bear the losses of
acreage caused by natural erosive forces. The landowners would likely respond that the
enactment of (i) County zoning, (ii) 30235, and (iii) the 1994 Ordinance modified the common
law rules by creating expectations that government would permit people to live near the bluff-
tops and allow them to build protective structures to prevent threatening erosion.
Project No. 323530000
Page 2-38
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