Marin Independent Journal
Bahia dredge battle drags on
By Rob Rogers
Marin Independent Journal
Wednesday, August 9, 2006
Novato's Bahia neighborhood nightmare is growing longer.
Residents will have to wait a little longer for an end to the 20-year-old legal battle over plans to dredge the area's man-made lagoon.
Marin Superior Court Judge Michael Dufficy was expected to decide Thursday whether to overrule a 1992 order that requires the Bahia Homeowners Association to dredge one of its two lagoons, a project estimated at $17.9 million.
But Dufficy agreed to postpone his decision to Sept. 22 to allow a new group of homeowners, the recently formed Bahia Independent Resolution Group, to participate in the case.
The decision is the latest round in a legal struggle that has cost the homeowners' association $4.5 million over the past two decades and continues to pit neighbor against neighbor.
"This has been going on for 20 years now," said Leo Bourke, a Bahia homeowner for 35 years and a member of Bahians United to Vacate the Order, a group dedicated to ending the legal dispute. "In that time, we've enriched a number of attorneys, provided good employment to our ex-receiver and spent almost $5 million. And we're not back to square one. We're at square minus one."
Bahia Homeowners Association President Kimberly Price said the fight has taken its toll on the neighborhood.
"If this litigation was resolved, I think the prices of homes here would increase," Price said. "And I think people would finally feel free to spend money to improve their homes. A lot of neighbors haven't invested money in improvements because they're concerned about being hit with possible assessments" for the dredging project. "You see homes that aren't being kept up as much as they should be. It's a sad situation."
But members of the Bahia Independent Resolution Group argue that the homeowners' association would reduce the value of their homes if it abandoned the dredging project.
The Bahia Homeowners Association "now seeks to benefit from its intentional foot dragging by asking this court to vacate the very orders with which (it) has continuously refused to comply," the group argued in a memo to the court. "This brazen attempt to obtain judicial approval for BHA to abandon its responsibility must be opposed and BIRG seeks leave to intervene to do just that."
Gary Ragghianti, the San Rafael attorney who represents the group, said he did not know how many homeowners are in the organization, as it is still soliciting members. Ragghianti also serves as city attorney of San Rafael.
Built in 1969 at the edge of two artificial lagoons, Bahia attracted homeowners interested in waterfront views and boat access to San Francisco Bay through the Petaluma River.
But the neighborhood lagoons began filling with river silt in 1986. To keep them open, Santa Rosa developer Debra Investment Corp. dredged the lagoons three times.
When the lagoons filled up again in 1990, Paul Tanner and five other residents sued the Bahia Homeowners Association. The association's regulations require it to keep the waterways open to navigation.
Tanner and his fellow litigants settled their suits with the homeowners' association in 1999. However, the terms of the settlement require the association to move forward with plans to keep the lagoons open permanently by connecting them to each other, dredging a 14-acre channel and installing a lock, similar to one used in nearby Bel Marin Keys, to keep sediment out.
Because the lagoon is in a tidal marsh, the proposal required the approval of 13 federal, state and local agencies.
Although Novato's Planning Commission and City Council backed the plan, representatives of the state Bay Conservation and Development Commission said in February that it was unlikely they would ever approve the project.
In addition, the dredging proposal has faced stiff opposition from the Marin Audubon Society, which hopes to begin work on a 300-acre wetlands restoration project adjacent to the neighborhood this fall.
The homeowners' association needs the society's approval in order to renew its city permit for the project, which has expired. Society president Barbara Salz-man says that will never happen.
"In the intervening years, all of the lagoon area has reverted to a tidal marsh, which has become a habitat for a substantial population of endangered clapper rail," Salzman said. "To molest them, and potentially block off the wetland for the recreational use of a limited number of people, is something that we find totally unacceptable."
Many Bahia residents supported the project in the beginning, when its cost was estimated at $5 million. Debra Investment developers had hoped to defray that cost by building 424 new homes at Bahia. When Novato voters defeated that proposal in 2001, the financial weight of the project fell on the shoulders of Bahia's 288 homeowners.
That cost had ballooned to $17.9 million by 2005. If the association completes the project, each waterfront household would be assessed at least $90,000, while all others would have to pay $45,000 each.
"That's only one piece of the final cost," said Wanden Treanor, a San Rafael attorney representing the homeowners' association. "There's also the cost of mitigation. With all of the opposition to this project, it could be another seven to 10 years before they began dredging." Treanor also serves on the Marin Community College board.
In a survey conducted last November, 68 percent of Bahia's homeowners said they opposed the dredging project. Seventy-three percent said the assessments would be a financial hardship.
"I know those assessments are going to create foreclosures, especially for some of our retired citizens," Price said.
In addition, many Bahia residents have warmed to wetlands. According to the survey, 59 percent of residents believe the current condition of the lagoons is at least "somewhat acceptable."
"We've had a lot of people move in who enjoy living next to a wetland," Price said. "I think we have more nature lovers now than boat owners. There are still people who miss the boats, but a lot of them have left."
And while they've lost their waterfront property, and seen the value of their homes fail to rise as quickly as others in Marin, some Bahia residents are still happy with their purchases.
"I bought one of the original model homes for just over $40,000, and I sold it for about a thousand percent more," Bourke said. "Where's the worm in that apple?"
THE LONG BAHIA DEVELOPMENT SAGA
1969: Debra Investment Corp. builds the 288-home Bahia development in northeast Novato.
1986: Bahia lagoon dredged for the last time.
1992: Homeowners sue association; court orders homeowners' association to make lagoon accessible to boat traffic.
1999: Association settles lawsuit with homeowners, but court order remains.
2001: Novato voters reject plan to allow 424 new homes at Bahia, driving up individual assessments for dredging.
2006: Homeowners' association asks judge to vacate dredging order, but is opposed by new homeowners' group.
Contact Rob Rogers via e-mail at email@example.com