Del Mar Group Sues to Save Beach Access Path

A group of residents here, worried that an agreement between the city and the owner of an oceanfront restaurant will block a major access route to the beach, filed suit against Del Mar on Wednesday in an effort to nullify the accord.

Resident Marshall Ross said that the agreement, made between the city and a co-owner of the Poseidon Restaurant last month, constitutes “an outrageous giveaway of public rights to beach access.”

Ross said he and half a dozen fellow residents, supported by a San Diego group known as the Public Interest Law and Legal Society (PILLS), also are protesting the process through which the agreement was reached.

“This item was not properly noticed, it was hidden on the agenda under an item on drainage projects, and was not introduced until midnight, when very few people were present,” Ross said. “Our claim is that they violated city ordinances regarding land use matters and possibly state statutes. In any event, they did a very poor job of involving the public in this very important issue.”

Ross said he hopes to see the agreement broken and the matter renegotiated during a public hearing. Thomas Gilmore, an attorney hired by PILLS, filed the suit in North County Superior Court Wednesday.

Del Mar officials and City Council members contend that the agreement was negotiated in good faith and protects and enhances the public interest. It does not, they say, eliminate beach access.

“When people sit down and read this thing,” said City Manager Bob Nelson, “they will see that beach access is going to be different, not denied. Now, whether that access is better or not is, of course, open to interpretation.”

Councilman Scott Barnett agreed, and said the council “has been talking about this beach walkway thing for years and intended absolutely no deception.”

The agreement at issue permits owners of the Poseidon, just north of downtown Del Mar on Coast Boulevard, to construct a dining patio that extends onto the beach both west of the restaurant and across a 30-foot span between the northern edge of the building and the lifeguard tower at 17th Street.

In return, restaurant owner John Blake agreed to build a seawall on the beach in front of his business and will construct and maintain a public walkway.

Please see BEACH, Page 6

BEACH: Group Sues to Save Del Mar Walkway

The greatest point of dispute is the 30-foot span north of the restaurant, a major corridor to the sand that has been used by beachgoers “forever,” said Chuck Newton, another resident opposed to the Poseidon’s plans. The restaurant’s expansion would block that access, he said.

Although the property targeted for construction of the patio is technically owned by the Poseidon, those protesting the agreement contend the public has “prescriptive rights” to its use.

Newton said the group’s attorney will rely on a 1970 California Supreme Court decision, Goins vs. the City of Santa Cruz, that upheld the public’s acquisition of “prescriptive rights” to a private lot for parking.

In that case, justices held that if the public had unrestricted use of private property for five years or more, it automatically gained permanent rights to its use.

Ross and other residents contend that a similar situation exists in Del Mar, and note that a 1978 agreement between the city and the restaurant’s former owner recognized such “prescriptive rights.”

That pact permitted construction of the dining patio for a limited number of years, and required the owner to relinquish the property to the public at the end of that period, Ross said. That pact was effectively eliminated by the new agreement.

Nelson, however, noted that, since the new agreement was reached, “there has been discussion, and Blake has agreed to allow some access through the patio area next to the lifeguard tower.”

But Ross and other residents say they are not convinced that such access will be guaranteed, and say that even if it is, the prospect of beachgoers winding their way through tables and chairs is not an attractive one.

“I really can’t picture people tromping through a dining area,” Ross said. “And besides, we haven’t seen anything in writing to prove that’s what he intends.”