Will Litigation Over Strand Access End?

City Council offers compromise to Coastal Commission regarding gates at Dana Strand, cites precedent

By Andrea Swayne

Dana Point City Council changed the direction of its efforts to continue limiting hours of access—with a revision of the current schedule—at two of the five accessways to Strand Beach leading through the Headlands at Strand development. By unanimous vote on Tuesday, the council approved a Coastal Development Permit it feels adequately balances public access with public safety and interests of neighborhood residents and is in line with precedent set by a recently approved CDP in Malibu.

The council also directed city staff to change posted open hours at the two gated pathways—controlled by automatic timers and locking mechanisms—along with the un-gated North Strand access way, South Strand Switchback trail, the revetment trail along the beach, the funicular and at all other parks and trails that are a part of the Headlands Development and Conservation Plan (including Hilltop Park, Harbor Point Park and the Nature Interpretive Center) from one hour before sunrise to one hour after sunset, effective Wednesday morning.

HISTORY

The dispute between the city, the Coastal Commission and the Surfrider Foundation over the gates and restriction of hours at the Mid-Strand and Central Strand paths, set off more than five years of litigation.

In 2009 the city built gates and began locking them from 5 p.m. to 8 a.m. October through April and 7 p.m. to 8 a.m. from May through September. The Coastal Commission deemed the action as contrary to the Coastal Act and Local Coastal Program and ordered the gates be removed and told the city a CDP was necessary.

The city disagreed and in 2010 issued an emergency nuisance abatement ordinance it contended gave the city the right to set hours at the gates as a protective measure against crime and vandalism in the neighborhood.

The dispute eventually led to a Sept. 17 decision by a San Diego Superior Court judge in favor of the Coastal Commission, calling the city’s nuisance ordinance an illegal attempt to avoid Coastal Act requirements.
Throughout the legal battle, the Surfrider Foundation has continued to oppose the gates and hours, as it feels such restrictions amount to a slippery slope that could potentially set precedent allowing municipalities statewide and beyond to restrict beach access.

And the city has continually maintained that the restriction of access through the neighborhood during nighttime hours is necessary to public safety and does not restrict the public’s access to the beach, as the two paths north and south of the neighborhood are ungated and open 24/7.

NEW DIRECTION

At Tuesday’s meeting, City Attorney Patrick Munoz said that although the city has long disagreed with the Coastal Commission’s position that a CDP is necessary, after losing in court in September, the city, in an effort to avoid further litigation, has agreed to apply for one. It is believed, he said, that the proposed hours in the CDP will be acceptable as they mirror the “Ackerberg” CDP—he referred to as precedent setting—approved last year by the commission in Malibu.

Mayor Carlos Olvera asked Munoz why the city hadn’t processed a CDP in the first place.

Munoz responded by saying that at the time it was believed that the commission would, under no circumstances, have approved gates and the city strongly believed nighttime closure was necessary. He also cited a higher level policy concern that the commission‘s position would have precluded the city adopting nighttime closure in its other coastal zone parks.

“The law has changed … our choices now are to appeal and keep fighting this fight or to put litigation behind us,” Munoz said. “People have said that the city is trying to somehow create a private enclave for wealthy homeowners. That couldn’t be further from the truth. We are trying to balance public safety needs with public access.”

City Manager Doug Chotkevys agreed, saying his wish is that the CDP will be successful in balancing everybody’s rights. “The Malibu CDP tells me we can do that,” he said.

Public speakers for and against gates and restricted hours were fairly evenly mixed.

Dana Point resident and Surfrider Foundation member Denise Erkeneff said the Mid-Strand and Central Strand access ways were mandated by the original development plan as the shortest paths to the beach and brought a list of examples of beach access hours approved across the state by the Coastal Commission.

Erkeneff also said the legal fees associated with the litigation, which she contends could reach over $21 million, include not only trial costs but a potential for retroactive enforcement costs.

Resident Buck Hill asked where the real benefit to the city is in regard to the gates.

“Who’s the beneficiary?” Hill asked, adding that the developer has likely been selling lots based on the expectation of locked gates. “The city attorney has benefited wildly, even though he lost all his cases, but what good has this done for the citizens of Dana Point?”

Cristine Lindenfelser, a Headlands at Strand property owner, said she has been reluctant to build on her land due to the ongoing litigation and that she simply expects the right to safety and security the closures provide.

Lynn Taylor, a Lantern Bay Estates resident, said she also supports the city staff recommendation to restrict access during nighttime hours.

“I walk the Strand morning and evening and have never felt restricted,” she said. “There are two paths that can be accessed 24/7 and I think, if anything, those should be restricted … Nobody needs to be on the beach after dark.”

Councilman Joe Muller, who is in his first year on the council, said he agrees with the new CDP and made a motion to approve it, with the added caveat that the hours be changed, effective the morning of Wednesday, Nov. 4.

“Maybe the past council did overreach, but everything the developer did does make sense,” Muller said. “We’re not making sense here… I understand (as a surfer) why we need access early in the morning … I don’t get why people think we need access 24/7.”

Councilman Scott Schoeffel asked Munoz that with City Council having heard the disposition of the trial court loud and clear, if the CDP is responsive to that and to correspondence received by the city from the Coastal Commission.

Munoz answered with an affirmative “yes.”

“I am concerned with ending this litigation and am hoping this will be the first step,” Schoeffel said.

Directly following the close of the meeting, Mayor Olvera signed a letter addressed to Dr. Charles Lester, Coastal Commission executive director. The letter was immediately forwarded to Lester informing him of the council’s decision to move forward with a CDP “similar, if not identical” to the recent Malibu CDP.

The letter also said when the commission originally approved the LCP and HDCP in 2004, the plan called for the city to determine hours of operation on the area’s public trails and also included a depiction of gates in the plan diagrams.

The Mayor’s letter, in part, reads: “While we may not necessarily agree with the recent Statement of Decision regarding the city and Coastal Commission litigation … I believe that we will both agree that it is time to put the litigation behind our two agencies and focus on the future … The city’s hope is that our two agencies can move forward with a spirit of conciliation and deal with these issues in a constructive manner that carefully balances the need to protect our sensitive resources and to protect the privacy rights of private owners while honoring the public’s right to access. We believe that the CDP approved tonight does just that, and we look forward to working with the Coastal Commission in a collaborative manner in the future.”

Stay tuned for updates.