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Photograph by George Sakkestad

Mine, All Mine: Development can compromise the public's constitutional right to get to the beach.

Free Beach Movement

Piggy Beach neighbors like their strip of sand just the way it is--easy to get to, but not that easy

By Andrea Perkins

FOR THE NORTH COAST, Five Mile Beach is unusual. Protected from the wind by ochre cliffs where swifts build their mud nests, it's pristine and wild, like some forgotten Shangri-La. Also called Piggy Beach because a rancher once let his pigs forage there, Five Mile Beach has long been one of Bonny Doon's best-kept secrets. If I told you how to get there, somebody would probably kill me.

Nearby residents have traditionally crossed privately owned agricultural land in order to get to the beach, but when security guards started patrolling the well-worn trail a few months ago, the alarmed neighborhood turned to the California Coastal Commission for help.

Farmers once lived in this charming enclave of small, antique homes. Today, about 12 renters and 12 homeowners reside here. "Some of them have been going to Piggy Beach for three generations," neighbor Marty Demare says. "Nobody will give up [access to the beach] without a fight."

Bonny Doon is known for its rural character and vociferous inhabitants, who can often sniff out development before it hits the blueprint. Dooners have fought and won many land-use battles over the years, successfully halting strip malls, trailer parks, grocery stores, monster houses, event centers, limestone quarrying, helicopter logging and the Santa Cruz Biotech Industries' goat farm. So it comes as no surprise that this small neighborhood is already gearing up for a showdown with Sand Hill Bluff LLC, the company that owns the land they must cross to get to Piggy Beach.

"The security guards do allow certain people to have access to ... [Piggy] beach," explains Cathy Philipovitch, attorney for the owners of the land. "Included in that group are neighbors who have signed a licensing agreement."

Once signed, this agreement allows neighbors to get through the guards if they have their picture ID with them. A lot of neighbors have opted not to sign the agreement. "It was like if we acknowledge your right to grant permission to access the beach, we are also acknowledging your, or any subsequent owner's, right to withdraw permission," Demare says.

Owners of the ill-fated and controversial abalone farm that once graced the bluff north of Piggy Beach also tried to keep neighbors from accessing the beach. But these attempts failed when irate neighbors tore down the fence that kept them from the path.

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Beach Blanket: Beaches go down as seawalls go up.

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Sweeney Style

THE OWNERS of the land around Piggy Beach are not new to Bonny Doon. Under a paper-thin parasol company called the Sand Hill Bluff LLC, fellow dooner David Mills, a Stanford lecturer on white-collar crime, and his partner, Brian Sweeney, of Coast Dairies fame, own two parcels that make up most of the area known as Sand Hill Bluff along the North Coast between Highway 1 and the sea.

Previous land deals have already put Sweeney, a Nevada developer, in the limelight. In 1997, Sweeney had an option to buy Coast Dairies, the second-largest plot of privately owned oceanfront land between Oregon and Mexico. After making public his discovery of hundreds of old land deeds that would have enabled him to subdivide the property into 139 parcels, he was able to sell the option to the Save the Redwoods League for about $43 million.

This year, Sweeney made another lucrative deal, this time with the Trust for Public Land, another conservancy group. At stake was Big Sur's Bixby Ocean Ranch, one of the most photographed stretches of coastline in the state.

According to a March 25 article in the San Francisco Chronicle, Sweeney found 100-year-old homesteaders' land deeds that made it possible to divide the 1,226-acre Bixby Ocean Ranch into nine parcels. For $9 million, Sweeney and two partners purchased the entire ranch from then owner Peter Funt (son of Allen Funt, creator and host of Candid Camera), neglecting to mention the old deeds, which obviously increased the value of the land.

"I didn't let him know about the deeds when we found them," Sweeney told Chronicle reporter Michael McCabe, "because I didn't want to rub his nose in it."

Immediately after the purchase, Sweeney sold the Funt house for $7 million plus and announced plans to develop the rest of the ranch, inviting millionaires with mansions in mind to bid on parcels. As soon as he did that, Trust for Public Land came to the table with a little over $26 million, donated in part from public agencies like the federal Land and Water Conservation and the California Coastal Conservancy. Private donors like the David and Lucile Packard Foundation also contributed.

"It is something like winning the lottery," Sweeney told McCabe.

Some of Piggy Beach's neighbors suspect the Sand Hill Bluff LLC may be hoping to hit another jackpot by proposing development in the Sand Hill Bluff/Five Mile Beach area.

"I think they're trying to get everything lined up so that they can go tell the Packards, 'Hey, we've got permits!'" says Demare.

Indeed, with the Trust for Public Land estimating that there is $100 million in public funds out there for protecting coastal land from developers, selling to conservancy groups seems like a surefire way for developers to make a profit.

Both Sweeney and Mills declined to comment.

Where's the Beach?

'A LOT OF PEOPLE don't understand that sandy beaches can be and are privately owned in many cases," says Linda Locklin, manager of the Coastal Commission's coastal-access program. "Beaches can be owned to the mean high tide, which is basically the water line. That means that quite often it's just the wet sand that belongs to the public."

That may be the case, but unlike Malibu, where no-trespassing signs and chain-link fences extending into the ocean are common sights, Santa Cruz hasn't had too many problems with beach property owners cutting off the public's access to a mean tide line that is legally theirs.

Still, Santa Cruz witnesses its fair share of other kinds of beach-access problems. Take the landmark case of Gion vs. City of Santa Cruz, which solidified beach-access standards for the entire state in 1971 (a mere year before the Coastal Commission was voted into existence as part of the Coastal Protection Initiative).

At issue was a bluff-top area on West Cliff Drive where everyone liked to hang out, but which Mr. Gion owned and wanted to develop. Not only did his case result in continued public use of the land instead of development, it brought the issue of the public's constitutional right to access the coast to the attention of the state Legislature, which then came up with steps and criteria to protect that access.

Today, the Coastal Commission's own constitutionality is being questioned because of a ruling in April by Sacramento Supreme Court Judge Charles Kobayashi (appointed by Gov. Deukmejian, who campaigned to abolish the Coastal Commission). And some fear that protection of the public's constitutional right (Article X, Section 4 of the California Constitution) to access the beach could give way to 14,000-square-foot beach homes with helicopter landing pads. Locklin, however, isn't quaking in her boots quite yet.

"The commission is appealing the decision," Locklin says, "and for now it's business as usual."

Tree Line

RECENTLY, A NEW LINE of trees was planted above Piggy Beach. While that sounds harmless enough, neighbors fear that there is more going on than just gardening.

"They planted those trees so that they would block the view from the neighborhood and highway," says a neighbor who wishes to remain anonymous. "That way they can threaten to build a house behind the trees, and there won't be any ground for objection since the house won't be blocking the view."

According to Diane Landry, lawyer for the Coastal Commission's Santa Cruz office, "There is no law against disrupting the view with trees or hedges on agricultural land."

"There isn't good view-shed protection in our county ordinances," says Demare. Like others, Demare is also aware that a few hundred yards north of the new tree line, on the spot where the abalone farm stood, poles showing the dimensions of a potential house have already been erected.

Trees blocking the sight of the poles from the highway have also been planted here. Application for a building permit has been filed but is still pending. In an effort to assuage expected neighborhood opposition, Sand Hill Bluff LLC sent Philipovitch, their attorney, and planning consultants from the Richard Beale Land Use Planning Inc. to meet and try to compromise with neighbors on March 20, after the application was filed.

"No compromise was reached one way or the other," says Philipovitch. "We listened to their concerns and answered their questions openly and honestly. We gave them every assurance that they will have the continued ability to access the beach."

But neighbors weren't satisfied with assurances from representatives of the owners, who, after all, might sell at any time.

"We tried to approach them about a deeded easement, but they didn't want to do that," says Demare, "because that would diminish the value of the property."

Doon or Die

WHILE THE NEIGHBORHOOD wants to secure continued access to their little slice of paradise, they're not eager to invite the rest of the world--with its cars and candy wrappers--to join them.

"If it's a question of everyone and their dogs going to the beach or nobody at all, I'd rather it was nobody at all," says neighbor Ben Harmon, who has seen otters and seals lying in rows on Piggy Beach. "I'd like to see it turned into a wildlife preserve, but I don't know how realistic that is."

Joy Chase, a coastal-access analyst with the Coastal Commission, is no newcomer to beach access debates. A longtime Coastal Commission staff person who accepted the newly formed analyst position after retiring, Chase knows the neighborhood would rather not have signs on the highway saying, "This Way to Piggy Beach," but she also understands the way California law works.

California law states that if the public has crossed private property to get to the coast for five or more years without interference from the property owner, then a permanent "public proscriptive right" to keep using that route, also called an "easement," can be established--even when the private property in question has clearly posted, but clearly neglected, "no trespassing" signs on it.

"It's not a matter of resolving the dispute in favor of the residents or in favor of the public," Chase says. "It's a matter of the evidence that we collect. If the evidence shows that the general public has been using it for a period of five years, and it has been substantial use, and we believe that there is enough evidence to go forward with it and have a case, then we would do that."

But Chase also thinks it possible that they will get to a point where there won't be enough evidence supporting public use. Explains Chase, "Then the residents will be left to do whatever they want. They can try to establish private proscriptive rights, which, if they succeed, would mean that they'd be the only ones allowed access. But in order to do that they would be responsible for collecting evidence and paying for the legal fees."

The Coastal Commission has been establishing public proscriptive rights since 1972, but before Chase's position was created last year (thanks to extra state funds), the enormous work of conducting proscriptive rights studies was added to the already heavy load of planners, which, of course, lengthened the process.

Chase's job is to focus strictly on public proscriptive rights of access. She conducts studies, organizes questionnaires and gathers historic evidence on how private lands in Santa Cruz County have been used by the public. If there is ample evidence that the public has used the land for a significant period of time, the Coastal Commission may either decide to take the matter to the attorney general or, what is more likely, settle out of court with the property owner, who will then (often reluctantly) carve out an easement.

Once an easement has been carved out, it must be "accepted," by a city, county or nonprofit organization, which is then responsible for maintaining, managing and retaining liability for it.

An easement has a shelf life of 21 years. Since an unaccepted easement is considered a "cloud" on a property title, if it isn't accepted during that 21-year-period, it loses its chance to ever become a public access.

Dedicated to Whom?

ACCORDING TO DEMARE, while the neighborhood would probably be willing to go to court for private proscriptive rights, what they are really holding out for is an "offer to dedicate" (OTD). An OTD is a mitigation condition attached to development permits resulting in a public-access easement. With an OTD, the neighborhood could bypass a costly court battle.

"I think there are people who would do anything to keep going to that beach," Demare says. "Right now, we are all hoping that the property owners will decide to be sympathetic to that."

Even if the neighborhood receives an OTD, it must, like any easement, be accepted before the 21 years pass. The Coastal Commission's Public Access Action Plan states that if only 82 OTDs were accepted and opened statewide, "on average, there would be a new access way every 14 miles along the coast." To date, however, only 36 percent of the OTDs in the state have been accepted, and many of the 1,200 that are still pending are nearing their expiration date.

The clock is ticking in Santa Cruz County, where 34 OTDs are outstanding. Four have been accepted by various nonprofit organizations, two have expired, five more will expire this year.

"Santa Cruz County hasn't stepped forward with a lot of enthusiasm in accepting these easements," explains Locklin, adding that nonprofits like Surfers Environmental Alliance and Land Trust of Santa Cruz County, on the other hand, have.

"No comment!" says County Parks Director Barry Samuels, before adding that he disagrees. "We have stepped up to the plate," he says, noting that the county operates and maintains well over a dozen beach access spots. "I think we're doing a great job, and you can quote me on that."

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From the May 23-20, 2001 issue of Metro Santa Cruz.

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