CA - Guest Commentary: Dispute over public right of way on Coast Walk is really a settled matter
Our clients who own the properties adjacent to Coast Walk have not challenged the city’s assertion that there is an “implied acceptance” as to those portions of Coast Walk that are paved and have been utilized by the public.
This is a rebuttal to Glen Rasmussen’s Guest Commentary, “Legal investigation is needed to settle the extent of the public right of way on Coast Walk,” Nov. 16, La Jolla Light.
I have known Glen Rasmussen for many years. I respect him and I consider him a friend. I know he has the community’s best interests at heart, but after reading his commentary, I felt compelled to point out a few errors and/or omissions.
First, we don’t believe the city attorney is “ducking” any controversy.
Second, Mr. Rasmussen cites a Jan. 23, 1995, memorandum from [senior land surveyor] Lee Hennes to Hal Valderhaug in the city attorney’s office. The problem with Mr. Rasmussen’s citation is that the Hennes memorandum was nine years before a Superior Court decision (Superior Court case No. GIC 804846) and 18 years before a non-published appellate court decision (4th District Court of Appeal case No. D057131), both of which resolved litigation addressing these very issues.
In substance, these two decisions conclude that the city never accepted the street dedications offered within Map 352. Those decisions are now binding on the city, as the city was a party to those lawsuits.
Third, Mr. Rasmussen fails to provide the readers with the enlightening emails sent from city staff to Mr. Rasmussen and to Melinda Merryweather.
The first email is from Gary Pence, senior city traffic engineer, to Mr. Rasmussen dated Feb. 1, 2022. That email substantiates the court rulings and concludes that, at best, the city has an implied acceptance of those portions of Coast Walk that were being utilized by the public and being maintained by the city.
A second email addressing this same issue was sent on Jan. 21, 2023, from Mr. Pence to Ms. Merryweather. Again, Mr. Pence stated that “we have reviewed all of the existing survey data for the area and concluded that the only right of way is the paved area that exists today.”
Fourth, Mr. Rasmussen is correct that Code of Civil Procedure 771.010 has four criteria required for a municipality not to accept a proposed street dedication and that “use” is only one of them. However, all of the requirements of CCP 771.010 are met. No “acceptance” by the city ever occurred, as you can see in the below analysis:
If a proposal is ... made to dedicate real property for public improvement, there is a conclusive presumption that the proposed dedication was not accepted if all of the following conditions are satisfied:
(a) The proposal was made by filing a map only. (Yes, no other proposal was made.)
(b) No acceptance of the dedication was made and recorded within 25 years after the map was filed. (Map 352 was filed March 22, 1887. No acceptance was recorded within 25 years or thereafter.)
(c) The real property was not used for the purpose for which the dedication was proposed within 25 years after the map was filed. (The area landward and seaward of paved Cave Street/Coast Walk was never improved or utilized by the public for street purposes. At best, the city has claimed “implied acceptance,” but only as to that portion of the Cave Street dedication that was actually paved and used by the public.)
(d) The real property was sold to a third person after the map was filed and used as if free of the dedication. (The property was sold to many subsequent owners and the area landward and seaward of paved Cave Street/Coast Walk was used by all owners as if free of dedication.)
This matter was settled in litigation in Superior Court case No. GIC 804846 in 2004, then confirmed by the non-published 4th District appellate court case No. D057131 in 2013 involving Virginia Way in the same subdivision Map 352.
Conclusion: The proposed dedication on Map 352 was never accepted by the city. The city right of way, if any, consists of only the paved portion of Coast Walk. All areas landward and seaward of paved Coast Walk are privately owned in fee and not burdened by any city right of way as originally depicted on Map 352.
Having said all that, our clients who own the properties adjacent to Coast Walk have not challenged the city’s assertion that there is an “implied acceptance” as to those portions of Coast Walk that are paved and have been utilized by the public.
Further, as the properties are developed or redeveloped, our clients have not and will not do anything that would in any way interfere with the public’s ongoing use and enjoyment of Coast Walk. We will continue to work with the community to make sure Coast Walk is preserved for generations to come.
— Matthew Peterson is a real estate lawyer with Peterson & Price of San Diego. ◆