On September 8, 2009, eight property owners along Mount Terminus Drive in Clairemont received a letter from the City of San Diego entitled “Encroachment into Tecolote Canyon Natural Open Space Park.” Stapled to the letters were satellite images of each home.
“It gives meaning to that saying ‘Big Brother is watching you,’ ” says 80-year-old Bob Collins as he looks at Tecolote Canyon from his backyard.
He turns and walks along a paved walkway the 150 feet to his house. The yard is flat, well maintained, and has statues, a cactus garden, and a patch of dark green artificial turf. It covers an area approximately 4800 square feet, 4012 square feet of which encroach onto City property.
Inside the house, Collins sets plates of cheese and crackers on the dining room table. Four neighbors have joined him to discuss the notice they received from the City’s Neighborhood Code Compliance Division.
In Michael Doering’s case, the notice listed a rear fence, “structures,” and a walkway that encroached onto 4869 square feet of parkland. David Kisic’s rear fence, stairs, structures, and a garden encroached on 7777 square feet of park. And Bob Collins’s turf, cactus garden, statues, paved walkways, and a chain-link fence were listed.
The neighbors were surprised to receive the letters. Most had purchased their homes in the 1980s, when the yards were already landscaped and fenced.
They found the satellite images attached to their letters upsetting. At no time had a code compliance officer contacted them requesting to check their properties for encroachment violations.
“The City has been systematically searching canyon rims for two years now,” says Doering. “So far, 137 letters have been sent to residents citywide. But I believe ours is the worst.
“The City says the notices are due to complaints, but they are not,” he continues. “I’ve contacted people in Otay Valley, in Tierrasanta, all of whom have received notices, and they all said the same thing: the City is systematically searching canyon homes. But they don’t want to admit it. Something fishy is going on here.”
At the table, Doering leafs through documents. He finds a snapshot of Mount Terminus Drive taken before the houses were built, and then he explains the history of the area.
In the mid-1950s, bulldozers graded hills overlooking Tecolote Canyon to accommodate one of the nation’s largest postwar developments. The developers, Lou Burgener and Carlos Tavares, named the area Clairemont.
Near the rim of Tecolote Canyon on Mount Terminus Drive the developers built eight houses. On the lots to the rear of the houses, they planned to terrace the canyon slope and build more houses. Those additional homes were never constructed, and behind each of the eight homes, flat, graded land extended past the property line.
In a letter dated August 14, 1959, Burgener and Tavares informed the new homeowners that no additional development was planned. The builders gave property owners permission to use the graded land as they pleased.
Years later, Burgener and Tavares sold the undeveloped land to Pacific View Development. During its time of ownership, Pacific View never revoked the property owners’ permission to use the land.
In 1974, the City acquired the property from Pacific View, condemning the land in order to dedicate it as natural open-space parkland. Since then, homeowners have maintained the yards without any complaints from the City, that is, until September 8, 2009.
“Previous owners did the encroachments, not us,” says Doering. “The fences, for instance, have been in place since the late ’50s.”
Doering slides a photograph across the table that shows two men standing in a large graded area.
“If you look in the background,” he says, “you can see that a fence is already up.”
After receiving the first notice from the City, the neighbors contacted Phil Balmanno, a land development investigator whose name appeared at the bottom of the letter.
“Initially, we called him, and he was real talkative,” says Doering. “That’s when he explained to us that for the past two years he has been searching canyon rims for encroachments.”
Months later, Doering says, Robert Vacchi, deputy director of the Neighborhood Code Compliance Division, informed him that the encroachment notices resulted from complaints, not from a systematic search of San Diego’s open-space canyon rims.
Vacchi did not respond to a December 10 email asking if the notices resulted from complaints. However, he did describe the City’s encroachment program in a December 1 email. “The Park and Recreation Department funds a full time Land Development Investigator to investigate grading, brush management and encroachment violations on City park lands. The Park and Recreation Department initiated the funding in August of 2007 and pays approximately $97,000 per year.”
In March 2010, Phil Balmanno; Robert Vacchi; Stacey LoMedico, director of Park and Recreation; Chris Zirkle, deputy director at Park and Recreation; and Councilmember Donna Frye toured the properties.
One month later, residents received another notice telling them to obtain a permit and hire a licensed contractor to remove all structures from the open space. The City gave the residents until October 18 to comply, after which they would be subject to citations, fines, and possibly a civil injunction.
In response to the letter, in May 2010, the eight neighbors on Mount Terminus Drive retained attorney Malinda Dickenson.
Neighbors learned that they have a right to use the land through prescriptive easement. Prescriptive easements are created by possession of land continuously for five or more years in an open and notorious manner that is hostile and adverse to the owner.
Dickenson says that because the property owners were given the right to use the land in 1959 and were not asked by the new developer to observe the property lines, they are legally allowed use of the land.
“Just because the government takes certain interest in the land doesn’t mean they take all interests,” said Dickenson during a December phone interview. The City did not specifically mention that it was taking the easements, she said. And, “In 1974, the City did not name all persons unknown in the condemnation action,” said Dickenson. “The interest that they included was the developers’ — no mention of unknown persons.”
Dickenson has requested information about the City’s program of investigating open-space encroachment, asked for copies of all encroachment complaints, and asked to view the program’s budget and funding.
Since May, “The City has given us four different [deputy city] attorneys,” says Doering. “Each attorney left their position, and this has dragged on for ten months. It cost us a ton of money because we’ve had to compile documents for each city attorney. And they have given us very little information and haven’t responded to our legal issue.”
As the neighbors await the city attorney’s decision and as the deadline — extended to January 3 — approaches, their attorney’s fees continue to accrue. They have spent approximately $16,000. If they end up filing a lawsuit, Doering estimates that he and his neighbors will spend close to $100,000 in legal fees, as will the City.
“Fifty-two years of continuous occupancy by previous homeowners should be enough to see that this situation is different,” says Doering. “I’ve personally not had much sleep the past year thinking about losing the backyard we’ve come to enjoy these past 23 years.
“It’s just stupid because the spit of land has no access from the street and it has very little access from the canyon. The land was never true canyonland. It used to be a hilltop.”