City Tries to Right Wrongs on Mission Beach Right of Way

One morning last July, a man wearing a sport coat, dress shirt and tie took a stroll down Ocean Front Walk in Mission Beach.

It was a hot day and as he walked the 2 1/2 miles from Pacific Beach Drive south to the jetty, talking into a tape recorder as he went, he drew stares from the summer crowd of sunbathers, young men drinking beer and scantily clad roller skaters who sped past him on the concrete walkway.

“They thought I was a narc,” Dave Twomey, San Diego’s deputy director of engineering, recalled recently with a grin.

But Twomey wasn’t there to bust anybody for marijuana use--or even to admire the ocean view.

Rather, with a practiced eye, he was studying the patios, redwood decks, seawalls, lovingly tended flower beds--and even a sculpture or two--that homeowner after homeowner had placed illegally in the 12 feet of dedicated public right of way beside their homes.

Of 180 houses and condominium projects on Ocean Front Walk, 150 include structures that encroach into the dedicated right-of-way between their homes and Ocean Front Walk, Twomey and other city officials have learned.

And of those 150 encroachments, only one had received a city permit.

City officials have known about the unauthorized improvements for years but have looked the other way. After all, the original 12-foot-wide wooden boardwalk--on private land but dedicated as a public easement in 1914 by Mission Beach’s first developer--had fallen into disrepair and hadn’t been used for decades.

The existing walkway--a 15-foot wide swath of concrete dedicated to the city in 1926 by the Mission Beach Co.--had seemed adequate for beach traffic.

Besides, Twomey and other city officials reasoned, the seawalls and fences were serving a useful function --protecting residents’ homes during winter storms and creating a buffer between the busy walkway and private homes.

But in January, 1984, as part of a routine hearing on future development in Mission Beach, city planning commissioners heard about the extraordinary number of illegal encroachments--the largest concentration of illegal encroachments anywhere in the city--and became alarmed.

Their concern set in motion a series of studies, public hearings, draft ordinances--not to mention on-site inspections by Twomey--on the encroachments and what to do about them.

It also caused panic among some Mission Beach residents who learned that planning commissioners were talking of widening Ocean Front Walk and might make them rip out their lovely decks and seawalls.

The possibility of a wider walkway threatened the quiet life style and privacy of beach residents, said Mike Lloyd, a lawyer and beachfront homeowner who in the last year became a spokesman for boardwalk residents.

“Look--you widen that (walk) and you begin turning Mission Beach into a Venice or a Fort Lauderdale with public drunkenness, rowdiness, unchecked speeding on bicycles and roller skaters,” Lloyd said as he sat on his sunbleached patio, watching an occasional roller skater sail by. “Should we really create more room for this to occur?” Lloyd asked.

(In contrast to Mission Beach’s 15-foot boardwalk, Ocean Front Walk in Los Angeles’ Venice community ranges in width from 20 to 40 feet --wide enough to accommodate an array of cotton candy vendors, pedestrians, skaters, jugglers, even a parade of elephants one weekend last year.)

Last week, however, more than a year after Ocean Front encroachments became an issue, the San Diego City Council put residents’ fears to rest.

The council in an 8-0 vote approved a special ordinance that requires Ocean Front homeowners to get a city permit for their unauthorized improvements in 60 days.

That permit allows those additions to remain until the council approves a budget to expand Ocean Front Walk. And it places liability for any injuries that result from the decks or fences on the homeowner, not the city. (The language is considerably more generous to homeowners than the city’s standard encroachment agreement, adopted in 1956, which specifies that an encroachment must be removed any time a city engineer so orders.)

The new ordinance also puts homeowners on notice that the city has the right to order all improvements in the right of way removed in the unlikely event that Ocean Front Walk is ever widened to its full dedicated width of 27 feet.

Such a notice was necessary, Deputy City Atty. Hal Valderhaug said, because although private citizens have no “prescriptive right” to use a public easement and later claim the city has vacated its interest, city officials feared that residents might eventually make that argument in court and, given recent rulings, might possibly win.

Indeed, some Ocean Front Walk residents have already made that argument, Valderhaug noted, although he suspects a few of them knew more about the city’s easements rights than they claimed.

For one thing, the right of way is clearly specified on property maps. And when Valderhaug visited Ocean Front Walk to inspect the encroachments, he said, “you could tell the expensive improvements were up to a particular line. And then the inexpensive improvements started” in the 12-foot right of way.

The settlement of the Ocean Front Walk encroachments appears to be an unusually amicable one for both homeowners and the city.

Up and down the state, encroachments are a nuisance for government officials as homeowners, bent on improving their property, construct sea walls, docks, patios and landscaped gardens on public land.

Often the encroachment is a deck protruding into a park or a tree planted in the buffer area between the sidewalk and the curb of the street. If the land isn’t needed at the moment, cities usually resolve the problem by allowing residents to leave their improvements but sign an agreement that they will remove the addition when asked to do so. (In San Diego last year, the city registered 146 such agreements.)

But the situation becomes sticky when city officials decide they cannot tolerate the improvements and that they must be removed.

“They think, ‘That’s theirs,’ ” noted George Snelling, a district engineer in the Los Angeles Bureau of Traffic. Sometimes it’s easier to expand a city walkway onto 10 feet of beach than try to force homeowners to remove encroachments, he said.

At Sail Bay, for instance, in the northwest corner of Mission Bay, it took a lawsuit and years of jawboning by city officials before about 20 homeowners removed 18 piers that blocked access to the public beach and signed encroachment agreements for the patios and landscaping that remain. Still, the city doesn’t plan to build a walkway along that beach until 1988 or 1989 --about 11 years after the debate over public access to Sail Bay began.

Sail Bay’s encroachments offer a taste of the legal battles that are expected to erupt if 150 Ocean Front Walk homeowners are required to remove their seawalls and decks.

“If you said, ‘Take them all out,’ that would be war,” Twomey said.

So far, the possibility of removing the encroachments is only a threat--and a distant one at that.

Although Monday’s council vote also authorizes a study on whether Ocean Front Walk should be widened, no budget or starting date for such a project was specified.

And although a 1982 city study on bikeways suggested the walk should be widened to create a separate bike lane, some top city officials, Twomey among them, doubt that will happen. They agree with Lloyd that widening would worsen congestion on the walkway.

If reason prevailed in the debate on Ocean Front Walk, much of the credit is due to Lloyd and Tony Caputo, another lawyer from Mission Beach who negotiated a compromise with the city.

Together, Lloyd and Caputo critiqued the proposed city encroachment ordinance. And one cold night last December, Caputo rode his bike to Lloyd’s house and “he and I sat down over a six-pack and rewrote it.” They sent their draft to Valderhaug, who returned it to them and then they rewrote it again.

Caputo also headed a Mission Beach Town Council committee that studied the width of boardwalks in other beach towns. When the council’s Transportation and Land Use Committee met in September, his group presented a study showing that wider walks encouraged larger crowds. Also, the group argued, if the walk were widened by 12 feet, it would be literally inches from the doorsteps of many Ocean Front Walk homes.

In January, 20 Ocean Front Walk residents watched approvingly as the Transportation and Land Use Committee recommended that the City Council adopt an agreement that would allow their decks and walls to stay.

With last week’s council vote, the issue appears to be resolved, although “if people refuse to sign them (encroachment agreements), the agreement could fall apart,” Caputo said.

He called the debate over the walkway “an interesting issue . . . a Catch-22 situation. You had the city with some apparent right that they were looking at possibly using. And you had a lot of property owners with improvements on public land.”

“It had the makings of a confrontation--the question of private property rights, or were these wealthy people on public land with the city as the White Charger ready to take them off?”

But the confrontation never really materialized. Deputy City Attorney Valderhaug still broods about the issue now and then. He said he can see why people built their decks and walls in the right of way, “but I just sort of have a feeling that the public should still be using that right of way.”

But Twomey offers what appears to be the prevailing point of view. Since the residents were using the 12 feet in question and the city didn’t seem to need it right now, “what harm is there in letting them stay?” he asked.