Fence Has Neighbors on Opposite Sides : Barrier to Beach in South Laguna Stirs Resentment

Totuava Bay, a breathtaking sliver of sand and sea flanked by towering bluffs, boasts one of the more pristine and secluded beaches in South Laguna.

But for some local residents, the beauty is marred by a 10-foot-high chain-link fence, topped with as many as six strands of barbed wire to keep outsiders from climbing over. The fence was erected on the north side of the beach more than four decades ago as part of a bitter boundary dispute and is now condemned by some nearby coastal residents as a dangerous eyesore.

“It’s more appropriate to a prisoner-of-war camp than a public beach,” said Michael McDaniel, president of the Sea Cliff Drive Homeowners Assn., which represents nearby homeowners.

McDaniel, 42, a radiologist, said he and his neighbors have tried asking nicely for the Laguna Lido Condominiums, which maintains the fence, to tear it down. After receiving a refusal on legal letterhead, he and more than 70 other residents petitioned the city of Laguna Beach to intervene.

They allege, among other things, that the fence violates state and local laws prohibiting fencing off of any beaches. McDaniel also contends that the fence poses a hazard to anyone who might try to climb over or tunnel beneath to get to the beach.

“Someone could be killed there,” he said.

The citizens are to air their complaints at tonight’s regular session of the Laguna Beach City Council. Councilwoman Martha Collison has already indicated that she will recommend to her colleagues that they instruct City Manager Kenneth C. Frank to work with the Laguna Lido Homeowners Assn. to arrange for removal of the fence. Collison said research shows no evidence that a permit was ever issued for the fence.

But leaders of the association vow to fight, saying a 1960 lease for their hillside property specifically requires that they maintain fences or other boundaries in order to preserve the beach as a private reserve for condominium residents and their guests.

“Our position is that we’re not trying to be hard-nosed about it, but we have to maintain it according to our lease,” said Lee Mothershed, president of the Laguna Lido Assn. “If we don’t maintain the fence, we could lose our lease.”

The 99-year lease is up for first renewal next year, Mothershed added. At stake, he said, are the title rights to 48 condominiums ranging in value from $275,000 to $350,000.

McDaniel and his wife, Jan, said they plan to argue at the council meeting that the association’s lease also stipulates that the fence must be maintained only unless to do so violates the law. They said they will also argue that the association has already violated terms of its lease by not maintaining a fence that used to lie on the south side of the beach.

“They’re hiding behind their lease,” McDaniel said.

David Taft, manager of the condominium complex, said he has offered to let McDaniel or any other local resident to come through a condominium gate in order to gain access to the beach. Taft said there is also access to the beach from the south, when low tide enables visitors to walk across the rocks from adjoining Thousand Steps Beach.

Orange County officials have termed the beach inaccessible to the public because there is no public stairway leading down the bluffs to the beach. California state law requires that all beaches be accessible to the public.

County planners ordered that a developer who sought permission to build a house on the bluffs overlooking the beach dedicate land for a public stairway as well. But the developer has revised plans, and the changes are still under review.

McDaniel said his concerns over the fence have little to do with beach access.

“It violates the natural beauty of the area and is dangerous,” he said.

The McDaniels, who moved into the neighborhood last September, are the latest in a long line of South Lagunans who have taken up a fight against the fence. In earlier years, the dispute became so highly charged that arrests and even gunshots were involved.

The whole controversy started in the 1930s when the late Eugene Swarzwald, then owner of the Laguna Lido Condominiums’ land, filed a lawsuit in Orange County Superior Court to prevent his next-door neighbor, Hallam Cooley, from using Totuava Bay Beach. Swarzwald claimed that his property boundary extended into the sea, forcing Cooley to trespass if he wanted to try to use the beach.

In a case that ultimately was resolved by the California Supreme Court, Swarzwald was granted the boundary line and, in 1947, he delineated the line by erecting a chain-link fence from atop a bluff all the way down to rocks abutting the sea.

Local residents were incensed at the action. Richard E. Fleming, for example, remembers being arrested by Orange County sheriff’s deputies after standing in the way and refusing to budge as builders were putting up the fence.

Fleming, now 81, said that the charges were subsequently thrown out of court and that Swarzwald died shortly thereafter of a heart attack. But Fleming said Swarzwald’s wife, Vivian, steadfastly defended the fence--even after a gunshot was fired into her home following an incident in which a young girl fell and broke her leg while attempting to climb the fence.

Over the years, the fence has been snipped by vandals and overcome by agile climbers. For that reason, Taft said, reinforced sections of chain-link have been added, and in recent years, strands of barbed wire were strung along the top. Savage winter storms five years ago toppled the fence altogether, prompting Laguna Lido officials to rebuild it.

A new generation of Sea Cliff Drive residents fought the new fence just as passionately as the old one. A focus of their revived protests was that the Laguna Lido Assn. had failed to obtain required permits from the county or the California Coastal Commission.

The Coastal Act of 1976 requires Coastal Commission review and permission for reconstruction or modification of any existing fences.

The residents did not take their complaints to a public forum, however, until they were organized by the McDaniels, who had moved to the neighborhood from another one in South Laguna. The McDaniels are using South Laguna’s annexation by Laguna Beach as additional ammunition against the fence, as it allegedly violates city height and material codes. According to the codes, fences can be no higher than six feet and must undergo a design review if they involve chain-link or metal barriers in residential areas.

Jan McDaniel hopes that a lengthy legal battle can be avoided and that the association will simply agree to take the fence down.

“This is just horrible,” she said, standing on her outdoor deck and looking down on the rusting fence. “I can’t imagine there is another fence like this in California.”