Tiny Park Becomes a Big Issue in La Jolla : Museum: San Diego Museum of Contemporary Art wants to fence the land, used as a sculpture garden. Some residents are vehement about keeping it open to public.

For Melinda Merryweather, a good day in La Jolla often starts with a morning meditation in the place she calls the little park by the sea.

Located in the shadow of the San Diego Museum of Contemporary Art, the grassy knoll offers an intimate view of the Pacific on gray winter mornings, providing her a moment of peace before she begins her day as a local photographer and mother of a teen-age son.

She especially likes the spirit of the grounds that are the legacy of beloved La Jolla philanthropist Ellen Browning Scripps. She admires the line of surviving cobblestone walls and pinkish sidewalk favored by the elderly Scripps, before her death in 1932.

“This place has become the very heart and soul of La Jolla,” Merryweather said one recent blustery morning while strolling through the quarter-acre garden. “It’s the way Miss Scripps would have wanted it.”

But storm clouds are crackling over Merryweather’s coastal patch of paradise.

As part of a planned renovation of the 50-year-old museum, officials have proposed building a fence around the back-yard sculpture garden as a means of providing added security for larger exhibits that might be shown there.

Museum director Hugh Davies says the back-yard garden figures prominently in the museum’s ambitious plans to create an indoor-outdoor ambience and take year-round advantage of San Diego’s enviable weather, in a way his counterparts in Chicago and New York could only dream about.

The 6-foot-high wrought-iron fence planned to frame the western edge of the tree-laden garden is necessary, officials say, to protect the priceless sculptures from vandals in a neighborhood where two pieces of outdoor art have already been senselessly damaged.

In an increasingly acrimonious debate that both sides acknowledge may be headed for court, La Jolla residents have claimed that the garden is public domain, not private property where museum officials can do as they please.

Since the year of Ellen Browning Scripps’ death, residents say, the public has enjoyed an assumed right to use the garden and take advantage of its peaceful atmosphere, palm trees and cacti and quaint wooden benches facing west toward the sea.

Building a fence would only close out the grandmothers, tourists and surfers who regularly go there, they say, an immoral move that would make a once-public place the exclusive domain of those who can pay the price of museum admission.

Most importantly, Merryweather says, public donations purchased the property for the museum in 1941 from Scripps Memorial Hospital, which was willed the property following Scripps’ death.

The more than $10,000 in donations came a quarter and a dollar at a time, Merryweather said, given by people like her own grandmother, a longtime La Jolla resident.

Since she first heard about plans for the fence last spring, the La Jolla planning commission member has collected more than 2,000 signatures on a petition, to stir up public support for the garden.

She has researched the dusty legalities on the property and has spoken before the San Diego Planning Commission, which is reviewing the fence proposal as part of the museum’s overall renovation plan. The project, directed by famed architect Robert Venturi, will add a cafe, library and more exhibition space. The commission is scheduled to consider the project Feb. 27.

And Merryweather has plans to ask the city’s historical site board to designate the garden as a local landmark, a status she hopes would present another obstacle for the fence.

For the cadre of La Jolla residents active in the drive, the issue is more than just the possible loss of a cherished public space--it about purportedly arrogant museum officials who have lost touch with the community.

The fence debate is the second to arise from the museum’s renovation plans. Two years ago, officials stirred public reaction over plans to remove four stately sycamore trees that stand guard at the front entrance of the building and replace them with palms.

Despite some negative community reaction, the tree-cutting will go on as planned when renovations begin sometime in 1993, officials say.

“The point is that these people think they’re their own little island, that they don’t have to listen to the community,” Merryweather said. “Well, I think they’ve lost touch with their roots. They wouldn’t even have jobs if it weren’t for the community who got together to buy the property.”

For his part, museum director Davies insisted that the garden is indeed private property and officials have the legal right to build the fence.

“The museum is really in a funny position here,” he said. “We want to use private property to show art in the best possible fashion and we’re being criticized by a small minority of people who say they want to maintain access, when we’re the ones trying to open up the garden to the people we bring in from around the world.”

At a time when museum officials are eagerly seeking city approval and continued public support of the renovation plans, Davies said they have been unfairly painted as arrogant community outsiders instead of a museum that enjoys a broad base of community support.

Officials have attended numerous community meetings to explain the nuances of their project, he said. They’ve even circulated their own petition--one that has gained 500 signatures so far from a community that has already generously donated $7 million out of $10.5 million needed for the renovation.

“We’re not developers, we’re not building a hotel here,” Davies said. “Our sole motivation is to bring a cultural presence to La Jolla, to fulfill our mission to show art. But somehow, the tables have been turned. Now, we’re the evil ones.”

Davies said that, while the museum has not protested any public presence in the park in the past, weary officials have no legal obligation to allow the public continued use of the garden.

“These people keep saying that community money paid for the land in the first place and that this gives them a right for its continued use,” he said. “But in a court of law, this has very little bearing or weight.

“I defy them to come up with any documents to prove their claim other than their emotional appeal that this is public property. I’m convinced that our case would stand up in a court of law. But I hope it doesn’t come to that.”

City officials say privately it may just come to that.

According to a Jan. 31 report issued on the museum project, city planners have recommended that the museum be allowed to build its fence.

“As far as the Planning Commission is concerned, the public’s right to the property is something to be considered in a court of law--it’s not up to the city to make that determination,” said one official.

“Since the right hasn’t been established, we’re saying if the museum wants their fence, they can have it.”

Jamee Jordan Patterson, a deputy state attorney general in San Diego, said the issue is one of implied dedication where the general public, through continued use, acquires rights to a property.

Residents could make a claim of prescriptive rights, she said, if they used the property for five years or more without asking for or receiving permission from an owner who never attempted to stop such use.

“If you cross a guy’s property for five years without him taking such measures as ordering you to stop or building a fence, then you’ve got a prescriptive to use the property,” she said.

“It comes down to how much the property is actually used. You get these claims all the time where neighbors of some development project say the place is used by vast hordes of the public when, in reality, it’s just used by the neighbors themselves.”

Residents claim that the park has been used regularly by not only locals but also tourists and surfers who read books on its benches and doze on its manicured lawn.

Davies has a different view of the garden’s use.

“My office overlooks that piece of property and, eight hours a day, I’m looking down on it,” he said. “It’s used by very few people. A lot look at it when they drive by, but they don’t enter out of respect for private property.”

Merryweather says the “pay-per-view” fence would be an insult to the spirit of Ellen Browning Scripps, a member of one of San Diego’s founding families who willed her estate to a local hospital that bears her name.

Almost 10 years after her death, the property and its house (designed by architect Irving Gill) were purchased for the museum interests. From then on, even as the property has undergone numerous changes, the garden has remained in the public domain, she said.

To make her point, Merryweather has canvassed La Jolla’s bookstores and coffee shops--and has even stood outpost at the park itself, seeking signatures for her petition.

“When the museum people started feeling the heat, they came to me and said I could use the museum and the garden for free--then they sweetened the pot, saying everyone in the ZIP code 92037 could use it free,” she said.

“But I told them they were missing the point. This is everyone’s garden. For a lot of people, the garden outside is just as valuable as the artworks inside.”

Meanwhile, Davies is confident that despite shots from a few snipers, the community as a whole is behind both the museum and its renovation plans.

“These people are making an over-simplistic argument out of this issue,” he said. “It’s not as easy as ‘Save the Whales!’ and ‘How do you feel about fences?’ In the end, they’ve blinded themselves to any appreciation to what we’re trying to create here.”