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Photo courtesy of Swanson Hydrology and Geomorphology

Flood Mud: This 1940 photo, taken from East Cliff looking toward the roller coaster, shows the river before the levee was built. In its place is a tule-covered island and flooded swamp.

Rising Tide

Talk of reclaiming the San Lorenzo tidelands threatens to trigger a tsunami of controversy as the Seaside Company and SCAN square off over a six-acre parking lot

By Sarah Phelan

FROM A GREAT BLUE HERON'S view, the parking lot at the corner of Beach and Third Street is unremarkable. A parcel of gray cement that runs parallel to the San Lorenzo where river meets ocean meets shore, the lot stands gated and empty for most of the year, its silence only broken by the occasional croak of an overflying heron or the yells of stone-throwing boys. In summer it is transformed, serving as the Boardwalk's biggest parking lot and operated by the Seaside Company, which charges the public $8 to park in one of 855 spaces.

And therein lies a crime, says artist Phil Baer, a Beach Flats resident, who walks the river mouth each day and believes this lot sits on tideland--and as such should be reclaimed and restored to the public.

"Tideland is part of the public trust and cannot be privately owned," says Baer, silver hair slightly askew, as he stands at the entrance of the disputed lot and pulls two maps of the San Lorenzo estuary from deep within a paint-spattered pants pocket.

The first map, drawn up by the United States Coast Survey in 1853, shows a tidal zone in the area where the parking lot now sits. The second map, produced by the Santa Cruz City Planning Department in 1993, reflects significant change: the land mass shown in the 1853 map has increased, thereby narrowing the river mouth by about 25 percent and creating the acreage, which the Seaside Company has used as a parking lot for about 40 years.

"By law, artificial land placed on tideland is still tideland," says Baer, indicating with a sweep of his hand the lot--which at high noon is already glaringly hot and rapidly filling with carloads of Boardwalk-bound tourists--and the Boardwalk itself.

"The logic of the artificial accretion ruling is obvious," Baer continues. If land could be created artificially with fill, and thereby taken out of public trust, most beaches would have been converted to privately owned fill by now, he says.

Behind Baer looms the Giant Dipper, which was immortalized--along with the carousel's hand-carved horses--in Sudden Impact and The Lost Boys. While Baer has nothing personal against the Giant Dipper or the carousel, he does take issue with other Seaside Company operations, including the Logger's Revenge, whose elephantine emerald legs plod across a 100-foot strip of city-owned land on the oceanside of the railroad trestle--a site that lies directly opposite a harbor seal rookery and, ironically enough, signs posted by the Santa Cruz Environmental Health Department that read, "Warning! Water of River unsafe for swimming or water contact."

Both the Logger's Revenge and the parking lot, Baer claims, rake in private profit while squatting on and blighting public land. "By paving over what was once tidelands, as well as building the Logger's Revenge, the Seaside Company has psychologically privatized the main beach, while blighting the city's most beautiful and defining view--the place where river and ocean meet."

Baer's soliloquy is interrupted by the nasal strains of Britney Spears singing "Oops! ... I Did It Again," blasting through the open window of a maroon SUV as it turns into the parking lot. A freckled-armed driver pulls out a $10 bill and pays the attendant, while her carrot-haired progeny ogle the Giant Dipper, which is already hurtling a load of shrieking tourists, arms raised above heads, up, down and around its white wooden frame.

Definitely the best roller coaster this side of the Rockies, this 77-year-old screamer has helped the last surviving amusement park on the West Coast earn its status as a State Historic Landmark. But that other defining view to which Baer was referring before Britney broke his train of thought--that "spirit-lifting spectacle" as Baer calls it, of heron-shadowed river spilling into ever-shifting sea--is not visible from here, though it lies but a stone's throw away.

The San Lorenzo estuary, where surfing granddaddy Duke Kahanamoku first rode California's white horses on a 15-foot redwood board, is hidden by a concrete levee.

American Pie

INSTALLED BY the Army Corps of Engineers in the wake of the devastating flood of 1955, the levee (which is currently being renovated as part of a river restoration project) bound a once-meandering waterway into a straight and narrow channel. While this man-made girdle was built to protect people and their stuff, it was disastrous for fish.

Nowhere was this disaster more evident than at the river mouth, according to old-timer Don Passerino, who remembers the river before either levee or parking lot were built and who worked for the Boardwalk when he was young.

Born in 1932, Passerino used to go fishing with his father for steelhead on the San Lorenzo when he was a boy. Passerino recalls how, when the steelhead season opened each winter, 200 fishermen would line the levee, elbow to elbow, on the East Cliff side, casting with Velveeta cheese or eggs.

"The men would wait until someone yelled, 'Fish on,' and then everyone would reel in their lines and get out the way to let the guy land his fish," Passerino says. "If you were lucky, you'd catch your maximum of two steelhead."

During heavy rains, Passerino recalls seeing trees, refrigerators and even whole log cabins wash down the river where they were spat into the ocean by the estuary, which became a raging swollen torrent during winter storms.

The rest of the year, the river ran calm, and a 50-foot tule-dotted island would appear midstream at the last bend of the river, parallel to where the levee now runs. "And where the Boardwalk parking lot sits was once all sand and swamp," Passerino tells me, adding that you could cross over to the island by way of a small wooden bridge.

All that disappeared in 1956, Passerino says, when the levee went up. By 1959, the river had gotten shallower. "That last bend of the river used to be a fishing hole where steelhead sat to rest on their way up- or downstream, but the levee wiped out everything."

Hydrologist and geomorphologist Mitchell Swanson, who has spent 20 years working on restoring rivers to health, says the entire town destroyed the estuary, first by building in the river's flood plain and second by building a levee to protect themselves.

And while he doesn't hold the Seaside Company responsible for that destruction, he says the only area where you could re-create classic lagoon conditions, vital for restoring coho and steelhead runs, lies where the Boardwalk parking lot currently squats. "By setting back the levee," says Swanson, "you could create expansive lagoonlike areas filled with vegetation where fish could rest, hide and eat."

Map Mapping the Tides: This 1853 map of the San Lorenzo estuary shows an island midsteam, marked by a thin black line. The river splits and runs in two channels around it.

Just the Facts

SEASIDE COMPANY spokesperson John Robinson knows all about the pitfalls of live interviews. A former Sentinel reporter, who once wrote about drug enforcement in the largely Seaside-Company-owned Beach Flats, Robinson went to work for the Monterey Bay National Marine Sanctuary and then Al Gore in Washington, D.C., before landing his present gig.

As public relations manager for the Seaside Company, Robinson clearly doesn't want to be misquoted on the tidelands issue--and he starts our conversation by handing me a sheet of pretyped statements.

Statement one reads, "The so-called tidelands have been in private ownership for more than 130 years--for more than 50 years before the Seaside Company was formed. To claim the Seaside Company somehow took this land from the public trust is ridiculous. We have clear title to this land, which was upheld by the Superior Court in 1933. We have paid taxes on this land for 70 years and have title insurance."

Baer, who four years ago first unearthed legal documents and maps that threw into dispute the legality of the Seaside Company's title, would disagree.

Baer believes that according to the State Constitution, as approved in 1872 and supplemental to Santa Cruz' incorporation as a town in 1866, "All tide lands within the corporate limits of said town between the line of high and low tide are hereby dedicated as public ground, and the title thereto is granted to the corporate authorities of the Town of Santa Cruz in trust for the use of the public, and without power to sell or in any manner dispose of the same or any part thereof."

Baer wrote to the State Lands Commission, which acts as plaintiff on behalf of the public in land use cases. Blake Stevenson, the commission's legal counsel, replied to his query by sending Baer a map drawn in 1853 (shown on page 6) just three years after statehood.

Thus armed, Baer superimposed the 1853 map of the San Lorenzo River mouth onto a present-day map, showing that the landmass today is much larger than it was, potentially involving nine acres along the river and seven acres along the beach of artificial accretion.

Baer's discovery was not however enough to sway the Santa Cruz City Council. In October 1998, then-Councilmembers Scott Kennedy, Mike Rotkin, Cynthia Mathews and Michael Hernandez voted to give the Seaside Company clear title to 4.8 acres of the Third Street lot, in return for a 1.2-acre triangle close to the levee, which the city needed to carry out its current river restoration project.

Then-Mayor Celia Scott and Councilmember Katherine Beiers voted against the settlement, which would have precluded any other challenge to the Seaside Company's title to waterfront lands. A dozen angry members of the audience, including Baer, his wife, Jane, and future Councilmembers Ed Porter and Christopher Krohn, also objected to the lack of public process or public vote.

Though city attorney John Barisone confirms that the Seaside Company received title to the lot in 1933, he points out that it is called "quiet" title, which means the land was the subject of a legal battle even then, 68 years ago, between the city and the Seaside Company.

And as Scott, who is an attorney by profession, points out, according to the terms of the city charter in 1933 when this deal first went down "the rights of the city in and to the waterfront and tidelands vested in it or in trust are inalienable ... unless authorized by a vote of two-thirds of the qualified electors."

No such vote took place in 1933, and when the council agreed to give the Seaside Company 80 percent of the land without putting the matter to vote, they appeared to be repeating history.

But the very next month, a new City Council, top-heavy with progressive SCAN-endorsed candidates, came to power. And by December 1998, newly elected Councilmembers Keith Sugar, Christopher Krohn and Tim Fitzmaurice (now mayor) voted with Beiers (against Rotkin, Hernandez and Mathews) to rescind authorization of "the city settlement of a potential public trust land litigation between the State and the Seaside Company."

On Scott's recommendation, the new council also hired environmental hotshot Antonio Rossman, a lawyer well versed in land-use disputes, having won a public trustee case at Mono Lake on behalf of the Sierra Club.

Fully on board by summer 1999, Rossman delivered his report a year later, along with a $78,000 bill. And since then, the City Council has not breathed a public word about Rossman's findings, while continuing to meet Seaside Company representatives behind closed doors--as Robinson's second statement confirms.

"For the past several months, we have met privately with members of the City Council to discuss issues of mutual interest--including the tidelands--but those discussions are private. Our interest is in doing what's best for everyone--not just those with a shortsighted political agenda who would prefer that people not work together."

SCAN Grilling

SCAN DIEHARDS, who want the tidelands reclaimed and restored, are giving the councilmembers they helped elect a serious grilling these days, accusing them of having got cold feet and warning them that they have only two years to do something before the next election rolls around.

At a recent SCAN meeting about the tidelands, attended by Councilmembers Keith Sugar, Ed Porter and Christopher Krohn, Sugar insisted that the possibility of litigation prevents the city from revealing the nature of their discussions with Seaside Company reps--but that they are pushing ahead as fast as humanly possible,

The investigation has taken so long, Sugar explained, because it has required exhaustive scientific analysis to establish where the average mean high-tide line was--a process that includes studying a 16-and-a-half-year period between 1850 and 1866 to determine what was tideland at the time of statehood.

Added Sugar, "The city's tidelands claims aren't just strong, they're irrefutable. I desperately want a resolution of the issue before our four years on the council are up. Right now, we can't do anything to compromise our position, but if we pull this off, this project will be a model nationwide."

Meanwhile, Porter talked about the need to hold public meetings to review historic photos, record what people remember the river being like and air concerns. And Krohn reminded the audience that the Boardwalk isn't about to go away. "We want them to stay, but we don't want them to expand," he said, adding the city wants to negotiate concessions from the Seaside Company such as remote parking lots with shuttles and bike lanes.

Fish Freak

WORDS LIKE "negotiation" and "concession" make Patricia Matejcek want to bite down hard. "It breaks my heart to get tango lessons from the City Council," says Matejcek, who as a member of both the Sierra Club and the San Lorenzo Urban River Plan (SLURP) Task Force is a shooting blonde comet of environmentalism.

SLURP's stated goals, Matejcek explains, are to reintegrate the San Lorenzo River back into the life of the town, beautify the levee and restore the habitat of endangered species such as the coho and steelhead.

"Restoring the lagoon is one of the most effective things we can do to help the fish, who currently speed along 25 miles of the San Lorenzo, only to be dumped into saltwater without any resting lagoon, thereby going into shock and becoming a smorgasbord for the birds, sea lions and seals," Matejcek says, adding, "these canaries with scales need clean water, oxygen and snacks. And we need to get out of their way. This lagoon is crucial."

Matejcek points out that everything we've asked of this watershed in terms of building houses, creating holding ponds and inflatable dams, and installing septic tanks and parking lots has only been done with an eye to our own short-term benefit.

"There's a very direct reason why we don't have fish, but we do have this one chance," Matejcek says. "If we give them this resting place, we can bring numbers back to sustainable levels."

In her opinion, "The council's cap-in-hand approach to the Boardwalk sucks. The Seaside Company can keep the roller coaster, the merry-go-round and the Cocoanut Grove. And that's it. The rest has been taken from the public. In terms of garbage, noise and pollution and what it costs the city in salaries for police, firemen and paramedics to patrol that area, the Boardwalk is a loser."

Matejcek clearly sees the Boardwalk as the 900-pound gorilla of Santa Cruz tourism, an image to which company spokesperson Robinson objects. "Yes, we have a heavy impact on the Beach Flats for three months of the year, but we have very little impact for remaining months," he says. "You couldn't ask for a cleaner tax base."

According to Robinson, the Seaside Company employs 1,000 to 1,500 employees each summer, 250 workers full time, and has paid $20 million in taxes to the city over the past 10 years. A recipient of numerous environmental awards and giver of thousands of dollars worth of charitable donations to local services and business, the company is, in Robinson's words, "very progressive" and "at the heart of a $545 million tourist industry." Says Robinson, "We used to be the biggest game in town, and that has made us a target. But these days we are dwarfed by UCSC."

Moving the levee, which is currently being renovated, back to Third Street would cost about $5 million, not including the land purchase. And it might leave the city vulnerable to litigation in the event of a flood. It would also cost the Seaside Company 40 percent of its Beach Flats parking space--and that, it seems, is the sticking point, at least from the Seaside Company's perspective.

"If the city finds the lands to be of such importance, they need to make an offer," says Robinson, fueling speculation that Seaside Company is using the dispute over the lot to leverage the city into greenlighting a two- or three-story parking structure close to the La Bahia--a Seaside Company-owned Beach Flats complex that builder Barry Swenson hopes to convert into a 100-suite hotel and conference center.

Photograph by George Sakkestad

Lay of the Levee: This shot shows the current levee restoration project by the parking lot, which would have to be torn up and moved back if the tidelands were to be restored.

Holy Waters

THE UYPI PEOPLE, who held the mouth of the river before the Spanish missionaries arrived, called the tidelands Aulinta, or Place of the Red Abalone. In 1769, Father Crespi named the waterway San Lorenzo after the most celebrated martyr of the third century, who was roasted to death face down on a gridiron over a bed of slow burning coals. His crime? Giving church treasures to the public, rather than see them fall into the Roman Empire's hands.

But instead of treating the river and its treasures with the reverence befitting its namesake, European settlers proceeded to martyr it--polluting and drawing off its waters for their sawmills, tanneries and logging operations--and killing fish in the process.

And the estuary felt the reverberations. Trains rumbled across its waters in the 1880s, carrying away lumber and leather--and bringing the first wave of tourists, a mild-mannered bunch seeking saltwater, fog-filtered sun and spiritual retreat.

Santa Cruz tourism took an albeit unintentional tacky turn in the 20th century, despite the efforts of Fred Swanton to glamorize it. A Brooklyn-born entrepreneur who introduced the town to electricity, Swanton sank his ensuing fortune into building the classy 1904 Casino and swanky Casa del Rey Hotel.

Unfortunately for Swanton, the casino burned down and the hotel bombed. By 1912 he was bankrupt. The newly formed Seaside Company acquired his assets in 1915--and the Southern Pacific Railroad continued to promote the Boardwalk as a working-class attraction.

The label stuck. And as automobiles usurped trains, and freeways carved up the land, day-trippers started pouring into town, looking for fun, sun--and a place to park.

Little wonder then if, in 1962, the Seaside Company, then headed by real estate mogul Laurence Canfield, decided to pave over a landmass to which it had held quiet title since 1933 and which had been dried out and filled in as part of the levee installation after the 1955 flood. Today, Charles, Laurence's son, is the president of the company, which aside from owning a couple of auto dealerships controls more than 30 percent of Beach Flats real estate, including 2,062 fee-paying parking spaces, 40 percent of them located in the Third Street parking lot.

Future Imperfect

FRUSTRATED BY the continuing silence from City Council regarding the tidelands, SLURP Task Force members wonder what to do next. They have discussed all the restoration options and looked at what San Francisco did to Crissy Field. They have sent the council reports about the value of wetlands and estuaries and what could happen if the tidelands were restored.

"Perhaps we should flood the parking lot if the City Council doesn't get off its butt soon," one task-force member jokes, while another suggests leafleting tourists and finding ways to get public support.

"We want to see Antonio Rossman's report and find out whether the city has a case," says Matejcek, articulating a common concern, while adding that she for one is contemplating launching a citizens' suit if the city doesn't act soon.

Such action could trigger a legal tsunami.

As Blake Stevenson of the State Lands Commission explains, his agency will only take legal action if one of the parties decides to sue. "We are not going to actively pursue the matter unless an agency is formally involved, which will only happen if someone brings suit," says Stevenson. "But then we would have to defend the situation, because we can't allow a case to undermine the commission's arguments by creating a precedent-setting case--that would weaken the overall mean-tide argument and result in the loss of more tidelands."

Legal action, according to Robinson's third statement, would not be a good idea. "All this talk about litigation is flat-out dumb. Litigation is a failure of leadership--proof that people can't work together. If the issue of our ownership of the tidelands is taken to court, we will prevail."

SCAN tidelands committee member Fred Geiger believes Seaside's bullish stance is a product of fear. "The Seaside Company is worried that if we prevail on this issue, we'll push forward on another two, namely the Logger's Revenge area, and the Southern Pacific RailRoad fill, and that they'll have to pay back all the dollars they made by charging fees on a public lands," says Geiger, pleased that the public will soon have a chance to see a slide show about the tidelands, which so far has only been viewed by city officials, the Seaside Company and SLURP members.

The show, which features a series of historic photos showing what the river mouth looked like prior to the levee project and how it has changed, will be followed by a discussion of restoration benefits.

Seaside Company spokesperson Robinson says he's disappointed that a city-appointed task force is showing what restoration would or could be like, before the city has resolved the legal issues. "It's setting people up for disappointment," he says.

According to Robinson's fourth and last statement, "This is not about the city vs. the Seaside Company. This whole controversy is about a political organization of dwindling influence and stale ideas searching for a cause and someone to demonize. We don't want to play that game."

Speaking without a pretyped script this time, Robinson adds, "The Seaside Company is going to protect its assets, but we're trying to work with the city. Whereas SCAN's agenda is to undermine and have the whole city turn out over a parking lot."

As a great blue heron glides over the parking lot, looking for a bite to eat, a larger problem comes into focus: with the coho nearly extinct and the steelhead threatened, the heron's food sources are getting scarce. So is the water that keeps the river alive. Even if we had the political will to reclaim a lagoon where fish could rest and hide, do we have the water to make such a project work?

Mitchell Swanson of Swanson Hydrology and Geomorphology will give a public presentation about the tidelands at the SLURP regular meeting on Monday (July 9) at 7pm at Louden Nelson Center, 301 Center St., Santa Cruz. (420.5132)

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From the July 4-11, 2001 issue of Metro Santa Cruz.

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