Three Houses and a Gap: What a Solana Beach Seawall Fight Teaches About Neighbours

When some owners on a bluff want a wall and the one in the middle does not, the state has to decide, and the case shows why private agreement is harder than it sounds

The Solana Beach Seawall Case

Those who favour private solutions to public problems have a standard hope. Leave people alone, define their rights clearly, and they will bargain their way to a sensible outcome without a government agency telling them what to do.

It is a good principle. A dispute on a bluff in San Diego County shows where it runs into difficulty.

The Facts

The case concerns a short row of houses on Pacific Avenue in Solana Beach, on a sandstone bluff above a public beach. A Coastal Commission staff report from 2021 sets out the history.

The owners of some of the properties applied to build a seawall on the public beach and bluff below their homes. The report records that the Commission denied the application in September 2020, finding that as proposed it would be inconsistent with the public access and recreation policies of the Coastal Act.

The detail that makes the case interesting is a gap. The addresses in the application are 249, 241 and 235 Pacific Avenue. The report refers repeatedly to the property between them, 245, and to an unarmoured span of bluff about fifty feet long beneath it.

The Commission accepted that the blufftop structures at two of the addresses were in danger from erosion. That matters, because California law provides that protection shall be permitted for existing structures in danger. But it was troubled by a continuous wall that would also cover the stretch below the house in the middle.

So it looked for something narrower. The report describes a conceptual alternative examined by the Commission’s senior engineer, which would have left the bluff and beach below the middle property in its natural state. The applicants’ own engineer analysed that option and concluded that a wall with a gap in it would not work: the unprotected section, he argued, was highly likely to accelerate failure.

There you have the problem in fifty feet.

Why a Gap Matters

Erosion does not respect lot lines. A bluff retreats along its whole face. If two sections are armoured and the piece between them is not, the sea concentrates on the unprotected part. It scours behind the ends of the walls on either side. In time the walls are outflanked.

So the owners with walls need the neighbour in the middle to have one too. And the neighbour’s bluff, if left alone, will go faster for having walls beside it.

Each owner’s decision changes what happens to the others. That is the textbook condition under which private bargaining becomes hard.

The Bargaining Problem

In principle the neighbours could sort this out among themselves. Those who want protection could pay the one who does not, or share the cost, or agree a design.

In practice several things get in the way.

The holdout. If a continuous wall is worth a great deal to the owners on either side, the one in the middle can demand a high price for agreeing. Or may simply refuse, for reasons of principle, cost or stubbornness.

The free rider. An owner whose house sits further back may calculate that the neighbours will pay to protect the whole bluff anyway, and decline to contribute.

Different circumstances. One house may be in immediate danger and another not. Under the law, the right to protection depends on the structure being at risk. An owner whose home is not yet threatened may not even be entitled to a wall.

And the party not at the table. The beach below belongs to the public. Any agreement among the homeowners disposes of something none of them owns.

What the State Did

The Commission’s role here was as trustee for that absent party. Its report states that construction of the proposed seawall would affect coastal resources including public access, recreation and shoreline sand supply.

It did not say no to all protection. It tried to confine the wall to what the law required: the structures actually in danger. The applicants said that was not technically feasible.

The 2021 document is a set of revised findings recording the decision and its reasoning. The outcome of any later application or litigation is not something this article has established.

The Homeowners’ Side

Their position deserves a fair statement.

They own houses the state allowed to be built. The law says existing structures in danger may be protected. Their engineer told them a partial wall would fail. To be offered only a solution that their expert says will not work is, from their side, to be offered nothing.

They might add that the bluff has no interest in whose lot is whose. If the geology requires a continuous structure, a rule that permits protection only lot by lot is at odds with the physics.

The Public’s Side

The other view is that the law’s limits are deliberate. Protection is allowed for a structure in danger, as an exception to the general policy against armouring. It is not a licence to wall a whole stretch of coast because doing so is more convenient.

Every extra foot of wall is a foot of bluff that no longer feeds the beach and a strip of sand that will eventually be lost. The beach in question is used by the public. An explainer on this autumn’s storms notes that the Coastal Commission warns that shoreline armouring can accelerate the loss of beaches by preventing them from migrating inland.

If engineering necessity is allowed to stretch the exception, the exception becomes the rule.

A Market-Minded Reading

What should someone who favours property rights and voluntary exchange make of this?

First, that the case is a reminder of why some problems are not solved by neighbours alone. Where each owner’s choice imposes costs on the others, and where a holdout can block everyone, there is a recognised argument for a body that can decide for the group. Homeowners’ associations and special assessment districts exist for exactly that reason, and they are private or local institutions, not the state.

A bluff-top street could form such a district. It could agree in advance how protection would be decided and paid for, and bind successors. That would be more in the spirit of self-government than a series of individual applications to a state commission.

Second, that the public beach must be represented by someone. In California that is the Commission. A libertarian may wish it were a more predictable and less discretionary body. It is hard to argue that the owner of the beach should have no voice.

Third, that price would help. If the owners were required to pay the full value of the beach lost to their wall, they would have a reason to build as little as possible and to consider alternatives, including, in time, moving back. And the public would be compensated for what it gave up.

The Lesson

The appeal of private ordering is real. It depends on rights being clear, on the parties being few, and on nobody outside the bargain being harmed. A row of houses on a crumbling bluff above a public beach fails the second and third tests.

That does not make regulation wise in every instance. It means that those who distrust it need something better to offer than the hope that the neighbours will work it out.

This article summarises a published staff report and sets out the arguments of each side. The London Prat has long experience of disputes between neighbours and reports on them in its British satirical news on neighbours and a wall and its London satirical news about the house in the middle. Bohiney Magazine covers the American coast.

SOURCE: https://bohiney.com/