Norman Magneson, 82, has spent the last four years fighting to have an unpermitted fence at the end of Nichols Street in La Playa removed from a disputed public right-of-way. Magneson’s vigilance has kept the issue alive over the years when it might have otherwise faded into obscurity. He has archived piles of legal and city documents, scoured San Diego Municipal Code and the Peninsula Community Plan, taken countless photos, and constructed diagrams supporting his argument that the fence is an illegal obstruction of the public’s view and access to the beach below. And the city agrees with Magneson’s position. Neighborhood Code Compliance has cited the owners of 2900 and 2905 Nichols Street multiple times since 2002 and Development Services denied them permits to legitimize the structures. It seemed for a while as if the issue was black and white, the case open and shut. But in March 2005, the bayfront property owners changed their tune. They filed a civil suit against the city claiming that the land was actually private, not a public right-of-way, due to a designation mishap in the 1800s.
More than one year later, the lawsuit has yet to go to trial. Both parties have instead opted to pursue a settlement that would use some, not all, of the property for public access, and end the lengthy dispute. Still, settling could take a while, as any agreement will require both local and state approval before becoming final. The fence in question was partially constructed without a permit in 2001 by Mark and Jan Barmann, owners of 2900 Nichols St. from 1998 to 2005. The large concrete wall blocked access from the street to the bay on their side and was reinforced by the planting of large trees and vegetation. In 2002, Metabolife founder Michael Ellis bridged the remaining gap from his home on the other side of the road – 2905 Nichols St. – also without a permit. Ellis owns multiple properties throughout the county, and has never permanently resided at the $15 million estate. Incidentally, since purchasing the home in 1999 through his real estate company, La Playa View Holdings, LLC, Ellis was found guilty of tax fraud and Metabolife filed for bankruptcy. The drug felon currently faces millions of dollars in personal injury lawsuits related to the sale of deadly ephedra diet pills, as well as probation for weapons charges. Ellis could not be reached for comment.
After failed attempts to persuade his neighbors to take down the fence and trees, Magneson took his complaint to the city, as he had in 1991 when a former occupant of 2900 Nichols had installed a similar obstruction. As a former member and chair of both the Peninsula Community Planning Board and Point Loma Association, Magneson is well-versed in matters of neighborhood development and expected a similar speedy conclusion. This time, however, the situation was not so quickly resolved. Since Magneson first notified Neighborhood Code Compliance in August 2002, the city has inspected the property nine times and issued four Notices of Violation for: fence material without a permit; unpermitted use of the right-of-way; paving, landscaping, irrigation, a fence and a wall in the right-of-way; obstruction of the visual corridor according to municipal code 132.0403; and violation of the Peninsula Community Plan and Land Code Plan by preventing visual and physical access to the shoreline. During the next three years, the property owners submitted, prolonged and revised applications to permit the encroachments in the public right-of-way, all of which city staff denied. “It was supposed to be a simple case, but it ended up being very complex because of the resources these property owners have,” said Tony Kahlil, senior engineer with code compliance. “There is no question that that is actually a public right-of-way. That is an extension of Nichols Street.”
Taking a new approach, the Barmanns and Ellis – represented by La Playa View Holdings – withdrew their applications and on March 1, 2005, filed a civil suit against the city for quiet title to the property. Shortly thereafter, Todd and Stacy Sabin bought the Barmanns’ $5 million home and inherited the legal battle.
Representing the current property owners, attorney Christopher Connolly of Peterson & Price said his legal argument revolves around state law requiring certainty of title in the sale or development of property. Connolly said that when the land was dedicated to the city as a paper street, the transaction was never accepted and recorded with the county. “We didn’t have to accept it because we owned it based on the 1884 Treaty of Guadalupe of Hidalgo,” countered Deputy City Attorney Christine Fitzgerald. She said that designation was never required, as the property was given to the city in a federal patent process after the Mexican American War. The question of ownership is still up in the air, but once decided, the City Attorney’s Office can pursue a settlement that will ultimately go before the City Council and Coastal Commission for approval. Should either body not accept, both the city and the property owners have the right to go to trial, Fitzgerald said. A meeting with a Superior Court judge is scheduled for September to ensure the negotiations are moving along in a timely fashion. For now it appears that they are. “What we’ve reached as an idea of a settlement is an improved public vista and public access,” Fitzgerald said, stressing that the plans are still tentative.
According to Todd Sabin, both he and Ellis are prepared to remove fencing and vegetation between their homes; construct a new, fenced path and sitting area on part of the property; and pay for it all from their own pockets. “[The lawsuit] will take years and years and it’s lots of money both for the city and us and I’d much rather instead of a win-lose for the city, I’d rather have a win-win for everybody,” Sabin said.
The specifics currently dictate a sitting area 25 feet wide (the length of the paved street) that extends 18 feet toward the beach. The width would then narrow to 10 feet for a path with stairs traveling down the slope. Magneson said he is not altogether opposed to the proposed settlement that shares the land, but he vehemently disagrees with any titling of that property to his neighbors. “They shouldn’t be restricted from having that sort of as their front yard, so to speak, which was the way it was before they moved in, but the public needs to have visual and physical access to that 50-foot-wide area,” Magneson said. “The main reason I’m pursuing this is because I want to uphold the community plan and I don’t want to see a precedent be established where these public right-of-ways and public view corridors are eliminated.” Currently, the Sabins and Ellis do not pay property taxes on the right-of-way between their homes, according to the Office of County Assessor. Fitzgerald said that is not a concern the city has looked into yet and something that will depend on how the settlement plays out. District 2 Councilman Kevin Faulconer said he plans to tour the property with Magneson and has already met with Fitzgerald to discuss the legal issues of the case. The councilman represents the beach communities between downtown and North Pacific Beach.
“I believe that public access to the waterway must always be protected, so I take that access at the public right-of-way very seriously,” Faulconer said. Former Deputy City Attorney Justin Booth represented the city on the matter until last fall when Fitzgerald took over. He said the case could have wide wielding implications for the entire city on the issue of annexed right-of-ways, though more likely to affect unimproved streets like Nichols than those regularly used for public access. “It’s a PB issue, it’s a La Jolla issue, anywhere steep hillsides end at water. It has far reaching ramifications,” Booth said. No matter the result, he continued, everyone has something to lose.
