Beach Enclave Harbors Fears of Public Tide : Lifestyle: A South County colony’s road has long been kept off limits. But improvement plans put a paradise in peril.

Tucked along a narrow, 1.6-mile strip here is a California paradox--a picturesque beach, reachable by a residential road that is kept off limits to the public by a public agency.

“I can’t think of another situation like that,” said Linda Locklin, manager of the California Coastal Commission’s coastal access program.

It has been this way for years on Beach Road, a gated drive that serves a string of 187 homes at the water’s edge between San Clemente and what local people call Hole-in-the Fence Beach, actually part of Doheny State Beach. Access to Beach Road is guarded by uniformed employees of the Capistrano Bay District, a tiny government agency funded by the residents’ fees and property taxes.

Now, longtime Beach Road residents say, there is peril in this paradise: The Capistrano Bay District is studying whether to make $7 million in road and utility improvements. And many say they fear that obtaining the regulatory permits needed for the job could have the unintended effect of opening the road to the public and giving non-residents greater access to the stretches of beach that Beach Road parallels.

“I don’t think that everybody was aware that there were strings attached” to making the proposed improvements, said Wayne Schafer, a 38-year Beach Road resident and real-estate broker who has sold property along the road to a who’s-who of Southern California, including Roy Disney and Hobie Alter, inventor of the Hobie Cat sailboat. “. . . I think the major concern of the residents is, we don’t want to do anything to disturb the (private status of) the road.”

Beach Road in many ways is no different from roads in other gated coastal communities, such as those a few miles north at Laguna Beach’s Emerald Bay and Three Arch Bay. But there is a distinction:

Access to Beach Road and to 18 walkways that connect it with the shore is controlled by an agency of local government--not a homeowners’ association. And although the Capistrano Bay District’s counsel has said that the agency is not required by law to open the road or the walkways, state law governing coastal access says that:

“Any city, county or other local agency which allows any property owned, operated or controlled by it to be used as a means of access to any public beach shall allow free access over such property to all persons.”

Schafer and others say they fear that Beach Road’s private status could be jeopardized by the proposed improvements, because any work would have to be authorized by government permits--permits that might come with conditions calling for increased public access.

“It’s a very difficult situation,” said Peter M. Schnirch, a Santa Ana attorney who represents some Beach Road residents. “The district board members are trying to do their best, but they’re getting a lot of conflicting (legal) opinions.”

The first stop for permits would be with Dana Point’s government, because Capistrano Beach is one of that city’s three districts.

Then, because of Beach Road’s proximity to the ocean, the permits could be appealed to the Coastal Commission.

Mike Farrier, manager of the Capistrano Bay District, said one outside attorney retained by the district has already cautioned that making the improvements could threaten Beach Road’s private status. Farrier said another attorney who specializes in coastal-access law has now been hired to analyze the potential ramifications.

Mary T. McNulty, a 28-year resident of Beach Road, said she is concerned about the “substantial road and drainage problems.” But more than that, McNulty, whose house has been hammered over the years by Pacific storms, said she fears that improvements could jeopardize the private status of her community.

“I don’t think you’re going to find anybody who will say, ‘Hey, I really think the public ought to come in here,’ ” McNulty said. “There are some people who would become highly agitated to see more people having picnics in front of their homes.”

If Beach Road and its adjoining 18 walkways to the ocean were opened, McNulty said, “you’d go from an above-standard lifestyle to something a little lower.”

Yet the Beach Road Homeowners Assn., a group that wants the improvements, recently passed a resolution urging the separate Capistrano Bay District to push ahead immediately, Farrier said.

“The feeling is that every day that we put this thing off, it’s going to cost us more money,” Farrier said, adding that Saturday the five-member district board will consider whether to put the proposed improvements to a vote of all Beach Road landowners.

“There’s a struggle within our community, within our family, as to what is best,” Farrier said.

It has not always been this way on Beach Road, where the first houses were built in 1926.

Except for occasional high tides and storms that have drenched the homes, the living has been low key. David Eisenhower and Julie Nixon Eisenhower; former ambassador to Ireland Peter H. Dailey; Walt Disney’s nephew, Roy Disney; some of surfing’s pioneers, including Joyce and Walter Hoffman--all have lived or kept Beach Road houses, in relative obscurity.

And until property values began skyrocketing in the 1970s, Beach Road was still within reach of those with less-than-six-figure incomes. But residents say that as values vaulted, philosophical disagreements have mushroomed between old-timers, who are satisfied with the road’s somewhat cluttered ambience, and newcomers, who have paid huge prices and want a polished, Malibu look.

“It used to be a place where people lived because they liked to use the beach,” said Gordon Clark, who moved to Beach Road in 1956.

Clark said he spends most of his time in Hawaii but maintains a home on Beach Road. “Now there’s a lot of new people who live down there because they want the address,” Clark said. “They want to make it another Malibu colony. . . . You have just too wide a range of people to keep together a gated community with peace and harmony.”

Martha McManis, a resident for 31 of her 79 years, said: “They’re trying to turn our alley into another Rodeo Drive. . . . It’s quite a touchy deal right now.”

Still, with few exceptions, the residents share a common concern:

They want their community to stay private, with public access to the strand parallel to Beach Road remaining limited, via Capistrano Beach county park on one end and Prima Deshecha Canada Beach county park on the other--and that access only by foot, close to the water’s edge.

And not all are convinced that the $7 million in proposed improvements--including putting existing power lines underground, replacing sewer mains and resurfacing bumpy Beach Road--would jeopardize the enclave’s private status.

In a letter sent recently to residents, Capistrano Bay District President John W. Hunt rejected contentions by those who oppose the proposed improvements. The Coastal Commission’s approval in the 1980s of the area’s land-use plan, Hunt said, has “settled . . . the issue of public access to our private road.”

But Locklin, who manages the panel’s coastal-access program, said the commission considers the access issues at Beach Road to be unresolved. Both Locklin and Lance Schulte, a senior Dana Point planner, noted that all but 46 of the homeowners retain title to the sand almost to the water’s edge.

Locklin said that while newer residences along Beach Road have been forced to offer title to chunks of beachfront as a condition for gaining permission to build or expand, the extent of sand open to the public “is not contiguous.”

“We’re working both with the county of Orange and the city of Dana Point (to) facilitate acceptance” from all homeowners of beachfront land, Locklin said.

Another issue unresolved at Beach Road, according to Locklin, is the legality of a public agency--the Capistrano Bay District--keeping closed to the public an avenue that provides coastal access.

“The commission staff has had concern about the guardhouse” that blocks the public from Beach Road, Locklin said. “But we’ve not quite determined what we’re going to do about it.”

Whether the walkways that extend from Beach Road to the sand belong to the Capistrano Bay District or to individual residents also appears to remain an open question. In May, Schnirch, the attorney for some Beach Road homeowners, asked a Coastal Commission attorney whether a local government agency such as the Capistrano Bay District is subject to state law requiring open access to the beach over “any property” controlled by a state or local agency.

John Bowers, a Coastal Commission attorney, said in a May 28 letter to Schnirch that an agency such as the Capistrano Bay District is subject to that provision of law.

Nonetheless, James S. Okazaki, attorney for the Capistrano Bay District for 20 years, advised Capistrano Bay District president Hunt in a May 20 letter: “We do not believe that the (state law at issue) is applicable to Beach Road and the walkways.”