Comments on Meyers, Nave Report
On behalf of the Beach and Bluff Conservancy, we wish to thank the City Council for examining its proposal for the establishment of a Geological Hazard Abatement District. The Meyers-Nave Report of January 10, 2003 provides an expert’s overview of the general utility of a GHAD, and confirms the analysis we previously provided. It is a good first step.
Now the Council should focus on the specific benefits of the unique kind of GHAD proposed by the Beach and Bluff Conservancy:
Development and implementation of a comprehensive, consistent plan for addressing chronic beach and bluff erosion, public safety and property endangerment-as opposed to hit-or-miss, project-by-project piecemeal development in response to emergencies;
Private funding for a comprehensive solution, paid for only by the property owners directly benefited, including assurance of ongoing maintenance funding-as opposed to public money borne by all city taxpayers
Avoidance of litigation, especially the repetitive, time-consuming and unproductive litigation under the California Environmental Quality Act (from which the GHAD is exempt)-as opposed to the endless series of challenges which now consume council and city staff time;
Protection from liability based on dangerous conditions of city property or “takings” claims from private property owners;
Implementation of city beach and bluff preservation policies through adoption of a consistent “plan of control” to guide the activities of the GHAD;
Assured coordination with city policies and control of the activities of the GHAD through a contract between the GHAD and the City to provide city staff support for planning and administration-at no cost to city taxpayers;
Direct, guaranteed participation by the City on the GHAD board for at least four years-enough time to assure the primary elements of the plan of control are implemented as initially approved.
The Beach and Bluff Conservancy’s unique approach to the establishment of a GHAD assures these benefits by taking advantage of the flexibility inherent in the GHAD law, adapting it to the circumstances we face, which Meyers-Nave Report does not directly address.
As envisioned by the Beach and Bluff Conservancy, the City of Solana Beach can assure that the benefits of the GHAD, as outline above, will be realized if the GHAD is formed under the following conditions:
1. The Plan of Control would be developed through a series of public meetings to assure that the plan presented for Council approval when the GHAD is created is both consistent with city policies and has broad support of both the property owners who will pay for its implementation, and the broader community. Only once the plan has been thoroughly considered would the Council vote on establishment of a GHAD.
2. Governance of the GHAD would reflect the City’s ownership of property within the GHAD. Because the city would appoint the initial GHAD board-which could serve for the formative first four years of organization-the city would control the GHAD’s crucial initial improvement projects. Thereafter, elected property owner representatives would oversee maintenance of the integrity of the Plan of Control and improvements. Thus, the city would set the crucial initial direction of the GHAD.
3. Before the GHAD began to implement the plan of control or commence operations, property owners would be required to approve initial assessments to pay for the GHAD’s use of city staff. A contract requiring city staff to administer the GHAD for an extended period of time would be a condition of GHAD approval. This ensures that private funding-not taxpayers-support GHAD activities.
Nothing in the Meyers Nave Report is inconsistent with this proposed approach. In fact, the Meyers Nave Report makes several suggestions which we support. First, it recommends that the Council include explicit limits on what the GHAD may do. We concur. For example, the council may want to require city consent before the GHAD undertakes any eminent domain proceedings involving city property. Second, it suggests that the Plan of Control include a set of approved priorities, to ensure the most important improvements are pursued first. Again, we agree, provided that the plan retains sufficient flexibility to respond to the unpredictable emergency bluff failures which may occur.
We are more optimistic than the Meyers Nave Report regarding the legal protection afforded the city by formation of a GHAD. Although the report suggests that the city might be held responsible for the activities of a GHAD under some sort of alter ego theory, we note that no legal support is cited for this proposition. In fact, we are unaware of any instances in which the courts have applied this common law theory to public agencies. Courts routinely treat redevelopment agencies, subsidiary districts, and other legal entities on which city and county officials serve in an ex officio capacity as separate legal entities for liability purposes. Since a GHAD is not only a legally separate entity, but a state agency, we are confident the city would not be held responsible for the actions taken by the GHAD, especially if structured as proposed by the Beach and Bluff Conservancy. This would be a significant legal advantage of making the GHAD responsible for implementing major elements of the city’s beach and bluff policies.
Finally, we were surprised by the absence of any discussion in the Meyers Nave Report of the process required for approval of assessments by the GHAD, and by the lack of any discussion of the allocation of the costs for GHAD implementation. As we pointed out in earlier communications, properties included in the GHAD are limited to those which will be benefited directly by the Plan of Control. In order to impose assessments within this limited area, two-thirds of these property owners will need to approve. Not only does this mean that the general public will not be asked to foot the bill for the GHAD, but it requires the Plan of Control to achieve a high level of support among affected property owners. The Beach and Bluff Conservancy remains confident that such broad support can be achieved.
We again urge the City Council to: (1) approve a resolution allowing GHADs to be created within Solana Beach; (2) establish a framework for the development of a Plan of Control for the protection of the public and the benefit of property owners; and (3) set a target date for the presentation of a GHAD proposal to the City Council for action. |
