Beach Encroachment Policy Deserves Support

On Monday, the Newport Beach City Council will hold the eighth (and hopefully final) public hearing on its beach encroachment policy. On June 11, the California Coastal Commission unanimously approved the policy to be considered, apparently recognizing the legal rights of adjacent property owners and the significant benefits to the public.

Although several flaws remain after many compromises, it deserves support of the community and the council. Approval by the council will resolve a decades-old issue and avoid years of litigation.

The key issue it resolves is who has what rights to the 35- to 45-foot “surface easement” between 36th Street and the Santa Ana River jetty. Unlike the beach adjacent to private property at Peninsula Point, where the city owns the beach in “fee simple,” the beach between the water’s edge and private property lines in west Newport was once entirely private property. It was purchased from the state of California by James McFadden on May 16, 1892.

Between 1904 and 1911, several subdivision maps created Ocean Front Avenue as a right of way for public street purposes in favor of the city of Newport Beach. Pursuant to state law in the early 1900s, a city could have an easement only for public street purposes and the land under the public street belonged to the property owners on either side of the public right of way.

In 1915 and 1916, the original subdividers sold all of the lots on the ocean side of Ocean Front Avenue to the city of Newport Beach. During the past 80 years since the right of way or “surface easement” was created, the city has not constructed “Ocean Front Avenue.” Normally when the purpose for which an easement is dedicated is not fulfilled, that easement would be vacated. In this case, if the easement had been vacated, half of the easement would be owned by the city and half would be owned by individual property owners adjacent to the easement.

Over the past decades, property owners have constructed fences and patios, usually in their “half” of the easement.

Although similar waterfront “easement” issues have been resolved in Sunset Beach and elsewhere in Newport Beach by granting encroachment permits without annual fees, this policy will require annual fees up to $600 for use of up to 15 feet of the easement, and property owners must acknowledge the city’s right to the surface easement. Annual fees will be used to improve public access to 33 street-ends and to provide more handicapped parking and a vertical access sidewalk to near the surf line so handicapped persons can view the surf from their wheelchairs.

I hope the above will eliminate the misconception reflected in recent articles which refer to the “easements” as “public beach”! The adjacent property owners in west Newport own the underlying fee interest in half of the 35- to 45-foot surface easement!

JERRY COBB

Past Chairman, Newport Beach Committee on Beach Encroachment Past President, West Newport Beach Assn.