Enclave’s residents are divided on whether walkways to beach are private or public land. : Paths of Contention


The carved, wooden sign near the guarded entry gate to Beach Road delivers its stern message with little room for doubt: “A Private Community--Residents and Guests Only.”

But inside the enclave of nearly 200 expensive homes, stretching 1.6 miles along the shore in Capistrano Beach between Doheny State Beach and San Clemente, are 18 pathways down to the beach whose status is not so clear.

Do the walkways belong to the public or should they be privately owned?

The Capistrano Bay District, a public agency that represents Beach Road residents, has asked the Dana Point Planning Commission for permission to transfer ownership of 15 of the 12-foot-wide trails to owners of the property adjacent to them.


But the proposal blew up into a neighborhood dispute when Beach Road homeowner Ray Pryke contended that the transfer would be tantamount to illegally taking public property, which the district says is worth $4 million.

“You can’t just give them away,” said Pryke, 72, a real estate developer and San Bernardino County newspaper publisher who wants a judge to review the transfer. “That’s a gift of public funds. If you look at the original tract map . . . everybody has a right to use them.”

Now the staff of the powerful California Coastal Commission has become involved, urging Dana Point officials to be cautious about giving up what might be public land.

Pryke said his stand has not made him popular with neighbors. Most of them share the opinion of Joe Dunn, another longtime Beach Road homeowner, who says homeowners near the walkways already have de facto title to the paths, which they have used and maintained for years.

“Who owns these strips has always been a cloudy issue,” said Dunn, 61, a real estate broker with the Charles Dunn Co. who has lived on Beach Road for more than 30 years. “Ray Pryke is a friend of mine, but he likes to stir things up. It is the contention of the property owners adjacent to the strips that neither the public nor the district owns them.”

The paths were installed at regular intervals when Beach Road was subdivided in 1928, providing drainage and beach access, said Robert O. Owen, the district’s attorney. Some homeowners have since fenced off and landscaped the narrow strips.

Over the years, two events have called into question--at least to some residents--whether the walkways are public or private.

First, when Beach Road homeowners formed the Capistrano Bay District in 1959 they voted to make it a public agency rather than a private homeowners’ association. Today the district, with a board of five elected Beach Road residents, runs on a $450,000 annual budget. About half of this comes from property taxes, with the rest from user fees paid by residents, Owen said.

Second, in 1990, the district sought to clear up the issue of who owns the walkways by taking over the title from the last developer of Beach Road, the late Ray Cherry of San Marino.

“In having a public agency accept the title, the walkways became public property,” Pryke said. “Now the district wants to give them away, but you can’t do that.”

Owen said the district merely wants to “clear up the whole mess” by giving the walkways to the people who own homes next to them.

The controversy has intensified with the entry of Dana Point City Councilwoman Toni Gallagher and the Coastal Commission staff.

John T. Auyong, a Coastal Commission staff analyst, sent the city a letter last week suggesting that transferring ownership would require a coastal development permit, which can be difficult to obtain.

Auyong also advised the city to “carefully examine the exact nature of the district’s ownership stake in the subject walkway” and noted that “rights of ways that lead to navigable waters shall not be vacated.”

“The city should determine whether the walkways can be defined as this type of right of way, based on the ownership interest in them held by the district as a governmental agency,” Auyong wrote.

Gallagher was hooted by about 60 Beach Road homeowners at a council meeting last week when she questioned whether the transfer deal is a “public giveaway.” She wants the council and city staff to study the issue carefully.

“If [the district] is a public agency, then this land is public property,” Gallagher said. “I want to make sure no public beach access and . . . no public land is being given away wrongly.”

Gallagher said the city should consider dissolving the Capistrano Bay District, since the Beach Road area is within Dana Point and could be served by the city.

Beach Road homeowners say the public has never used the walkways.

“There is no place to park, not even enough room for those of us who live here,” Dunn said. “If the city of Dana Point took this over, they would have to pay for lifeguards and maintenance. It would cost the city an enormous amount of money.”

For the moment, the issue remains unresolved. The city Planning Commission has refused to approve the walkway transfer until the city staff has had time to respond to the Coastal Commission letter.

Owen said the district will comply with whatever the city and commission decide.

“I think [the Coastal Commission staff] doesn’t have all the facts,” Owen said. “But we are certainly not going to just thumb our nose at the commission. We are going to have to resolve the situation one way or another.”