Received: from hplms26.hpl.hp.com by opus.hpl.hp.com with SMTP (1.37.109.8/15.5+ECS 3.3+HPL1.1) id AA00672; Wed, 14 Sep 1994 19:46:14 -0700 Return-Path: <shred@netcom.com-DeleteThis> Received: from netcom2.netcom.com by hplms26.hpl.hp.com with SMTP (1.36.108.4/15.5+ECS 3.3+HPL1.1S) id AA03586; Wed, 14 Sep 1994 19:46:39 -0700 Received: by netcom2.netcom.com (8.6.8.1/Netcom) id TAA19620; Wed, 14 Sep 1994 19:41:52 -0700 Date: Wed, 14 Sep 1994 19:41:49 -0700 (PDT) From: "Edward W. Scott" <shred@netcom.com-DeleteThis> Subject: Re: 3rd ave To: wind_talk@opus.hpl.hp.com-DeleteThis In-Reply-To: <9409150122.AA06224@mri.com-DeleteThis> Message-Id: <Pine.3.89.9409141950.A15469-0100000@netcom2> Content-Type: TEXT/PLAIN; charset=US-ASCII
Sorry Geoff-
To some extent, I think *you've* misunderstood. I don't pretend to know
the history of this thing, and I admit my property law knowledge is
somewhat lacking, but the issue is *coastal access* to navigable
waterways. I don't know what the deal was with the BCDC (someone please
tell me who these guys are), but the general public has a right, through
many hundreds of years of case law, to have land access to beaches
adjacent to navigable waters. Although the property adjacent to the
beaches may be privately owned, the general public has a public easement
to traverse that property in order to get the access. Some states have
very strict requirements in this area (e.g. Hawaii - I believe it's in
their constitution) and others are very lax (e.g. Massachussetts, which
to some extent until quite recently, allowed a form of private beach).
Btw - there is no such thing as a "private" beach adjacent to a
navigable waterway in the United States.
The issue here, as I see it, is what right does the general public have to
*park on* (and thus use) undeveloped, publicly-owned land which is next to
the coast? I'm not familiar enough with water rights law in order to
address this issue.
Your analysis reminds me of "adverse possession" wherein if a person
occupies a piece of property for long enough with the knowledge of the
owner of that property, he obtains ownership of the property. In
California, adverse possession has been statutorily defined, and you have
to pay property taxes on the plot in question, and occupy it for a loooong
time (e.g. 30 years). I don't think any windsurfers have been paying
property taxes on that site. Furthermore, I don't think adverse
possession is applicable in the case of a governmental entity, which I
believe more or less retains perpetual rights.
The first example, People's Park, is to some extent related because it
involved a governmental entity (UC), but is not really relevant because
the additional twist of *coastal access* is completely lacking. As far as
I can tell, UC can do whatever they want with People's Park, scumbags,
hippies, volleyball/tennis courts, notwithstanding. Your private property
example is not relevant at all because no private property is involved,
and no adverse possesion, as California has defined it, has taken place.
Jim's right. The least onerous path needs to be investigated first,
perhaps by way of cutting a "deal" with FC, preferably by those who have
contacts with the city. The last resort would be litigation (and
perhaps, civil disobedience!)
I'd really be interested in what theories the Surfriders have developed
on access issues, since they've been very successful over the years in
the courts.
-shrEd
Ed Scott
shred@netcom.com-DeleteThis
On Wed, 14 Sep 1994, Geoff Boehm wrote:
> They are concerned about asserting their property rights. This is
> essentially the same thing that happened in People's Park in Berkeley
> in 1967. Street people and students were using a piece of land that UC
> had no current use for,and in so doing were putting it to much better
> use than UC could at the time (the scene back then was much different -
> not the sleazy mess it is now). But UC was afraid that the longer
> people used it, the more they would feel they had a "right" to use it,
> and when UC eventually wanted it back, they would have a fight. So
> they nipped it in the bud (not that it worked - look at it now).
>
> What we have to realize is that such concerns are valid. It would be
> nice if we could think of a way to alleviate those concerns, but the
> truth is that we can't - because whenever they decide to take back the
> parking, they WILL have a fight. So they aren't going to be receptive
> to any improvements, even if there is no cost, because that will only
> make us want to hold on to the parking that much harder.
>
> Think about how you would feel if somebody asked it was ok to camp on
> an empty lot you owned in the mountains. Sure, no problem. You can ask
> them to leave any time. Then, they ask if their friend can camp.
> Then, they ask if maybe it would be ok to build an outhouse, or park a
> mobile home...
>
> It seems our only real hope of a solution is to make them feel secure
> that they can take the land back at any time, and then hope that it's a
> long time before they do. One way to do that might be to lease the
> property at a low rate - then it's a business transaction with a fixed
> timespan. Then it's real clear that we are paying for a privilege that
> can be revoked on short notice, and we can only hope they don't sell it.
>
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