Members of the public, including myself, are trying to get San Diego City attorney Mara Elliott to resolve the extent of the public right of way on Coast Walk — the roadway part at the northeast end (“La Jolla planners support Coast Walk home project with an unconventional condition,” Nov. 9, La Jolla Light).
So far, she is ducking a valid controversy by sticking to the status quo, which we believe is contrary to the facts and the law. This is a recurring legal situation that demands competent consideration of the facts and the law in order to resolve.
These issues were addressed and should have been resolved in 1995, as documented in a Jan. 23, 1995, city of San Diego memorandum from Lee Hennes, senior land surveyor, directed to Deputy City attorney Harold Valderhaug, and related legal documents in that Coast Walk case.
We’re not sure why these matters are regarded as resolved by our current city attorney. Her statement below does not make legal or factual sense to us. We think resolution would benefit all concerned, including setting forth a valid analysis of why the status quo of the roadway on Coast Walk exists as it does.
The matters I present below are true as far as I, and several colleagues, have been able to determine. To get to the full truth, we think an unbiased legal investigation can easily be conducted. There are more facts to know and consider.
This matter concerns the apparent taking some years ago of part of the public right of way on the east part of Coast Walk, probably to help get rid of partiers on the bluffs above Devil’s Slide, where old homes were and new homes were being built.
This matter concerns the paved portion of the public right of way called Coast Walk off Torrey Pines Road. The city of San Diego has no record of the paving of this portion of Coast Walk. It seems to have been paved privately in the 1980s or 1990s, pretty much down the middle of the public right of way.
At issue is the public’s right of access to the strip of land on the inland side of the paved portion of the public right of way at 1555 and 1585 Coast Walk. Presently the new owners want to join the open lot to the west of 1555, expand the residence and remove the home’s access from Coast Walk to the rear driveway.
The paved roadway is extremely narrow in this area — much narrower than the width of the public right of way. Bushes were planted on the inland area of the strip of land so it appears as if it is private. Trash trucks must back down this narrow roadway. There is no place to turn around except in the private driveways or if one of the two parking spaces above the bluff is not occupied.
This road also serves as access to several houses beyond the two bluffside parking spaces. There are six total. The bluff side is very steep, and pedestrians share the road with cars. Limiting traffic is a good idea, but limiting access is contrary to the California Coastal Act.
The entirety of Coast Walk is maintained under a right-of-entry permit held by Friends of Coast Walk Trail, the award-winning project that the public loves and appreciates — most notably between The Cave Store and Devils Slide Bridge. Walk on eastward and you come to this area, when the road begins to turn more easterly.
The highly reputable firm Island Architects in La Jolla has prepared designs for further development of the properties at 1585 and 1555 Coast Walk. The La Jolla Community Planning Association at its Nov. 2 meeting supported the application of the owners of 1585, subject to them not contesting the public’s ownership of their small portion of the inland-side strip.
The majority of the contested strip is in front of 1555. That project is coming up for approval next.
The recent purchase and subsequent presentations of these two projects for discretionary coastal development and site development permits (allowing review by the Community Planning Association) provide a unique opportunity to clarify not the private ownership but the width of the public rights of way across these properties.
Neither property includes new planned work in this strip. And this is not to say the owners do not own their properties to the mean high tide lines but that ownership is subject to various easements and the public right of way. In an older estate, there can be reasons why an underlying land right such as an easement or a right of way may not appear on title. Such may be the case here (see below).
Coast Walk is public by virtue of the initial grant of the property by Botsford and Heald, the developers of historic old La Jolla, in 1887. On Nov. 14, 1898, the Common Council of San Diego adopted Ordinance No. 565, which declared that “all streets, alleys, parks and plazas within the corporate limits of the city of San Diego … which have been dedicated by the owners thereof, or of which there has been an offer of dedication by such owners, for the use of the public, be and hereby are accepted as and declared to be public.”
This was six years before the Subdivision Map Act that required the filing or, importantly, the recording of subdivision maps. Before that, there was no statute requiring formalizing a dedication or its acceptance. The premise seems to have been to encourage public spaces, like over bluffs looking up the coast. Botsford and Heald dedicated much of what is in process of historic designation, so it’s doubly important to get this right.
The extent of this public right of way presents a complex legal question that this writer has brought to the attention of Mara Elliott. So far, she has taken no steps to resolve this long-running issue.
I am not alone in this venture, and I am on the side of what I believe is in the public interest. A majority of the LJCPA trustees agreed with me at the Nov. 2 meeting, where we approved Island Architects’ project at 1585 Coast Walk with the condition that the owners not contest a stipulated or court action to establish the public right of way.
Here is all we know of the city attorney’s position, as stated to us from Councilman Joe LaCava’s District 1 office:
“The city has an implied easement on the portions of Coast Walk that the city has been maintaining and the public has been using. Transportation Department staff has been exploring the potential to place additional parking or a turnaround space in this location, specifically on the inland side of Coast Walk. Although there has been some belief that there may be excess public right of way on Coast Walk that could be available for additional parking, the legal description for Lot 1, the property directly across Coast Walk from the two current parking spaces, does not include any easements for public rights of way.”
Legally speaking, under Code of Civil Procedure Section 771.010, “use” is only one criterion out of four required for a municipality not to accept a proposed street dedication. There is disagreement about whether this situation meets these required criteria.
A proper legal investigation would reveal why there is disagreement with the city attorney’s position and would reveal what would cause the city attorney to take this recent position, which is nearly 180 degrees from the legal process in 1995 under an earlier city attorney.
If this strip of land on the inland side of Coast Walk is indeed public right of way, the community can help determine the right thing to do with the public right of way. All interested parties should have input.
We have requested that the owners of 1555 and 1585 give some thought to returning the public right of way to the public at the appropriate time.
I sent Ms. Elliott a letter dated Sept. 19. I was advised that the city attorney has not changed her position (specifically that she has not provided any further guidance to city staff).
Based on my letter and more information that has been brought to our attention as this matter reveals itself, we request that Ms. Elliott investigate why the public has been limited to “what the city has been maintaining and the public has been using” and why the legal description for Lot 1 “does not include any easements for public rights of way.”
Glen Rasmussen is a trustee of the La Jolla Community Planning Association and the La Jolla Development Permit Review Committee. ◆
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