Back in May, we took a look at the misguided efforts of some nearby homeowners to exclude the public from a Monterey trail that’s been in use for longer than anyone can remember.
Efforts to reach a settlement failed and the matter went to trial before a Superior Court referee (Retired Justice Nat Agliano) in January. This week the referee issued his tentative decision. The referee agreed with the City of Monterey that the public has a right to use the trails on the parcel in question (Parcel B), then went beyond what the City had asked and found that the public has a right of recreational use covering the entire parcel. As the City was prepared to settle for considerably less, we imagine the homeowners are sorely regretting their insistence on pushing the matter to trial.
In any event, it’s a major victory for the public that upholds the original intent behind the dedication of Parcel B as open space (which occurred when adjoining land was subdivided back in the ‘80s – as described in our previous post).
Here’s some of what the referee had to say:
Substantial evidence establishes that for more than 30 years before 1972, various and diverse members of the general public, including visitors and users of Veterans and Quarry Parks, local residents and their families and friends, openly and continuously used those trails for travel, hiking, dog-walking, jogging, bicycling and general exercise. Neighborhood children crossed the parcel and its trails to walk to and from Walter Colton school. The public users never sought permission, believing Parcel B was part of adjoining City parks. The owners of Parcel B never objected or interfered with such use of Parcel B, and inferably acquiesced in the public’s use of the trails for the described purposes. The referee concludes, based on the above facts, that the above-described trails have thus been dedicated to public use.
…. In addition to the described use of Parcel B’s trails, the evidence establishes that various and diverse members of the public likewise used all of Parcel B for recreational purposes including hiking, camping, exploring, and general outdoor enjoyment. Children considered the parcel their playground. They built forts, played games, rode and jumped bicycles throughout the parcel. Members of the public walked their dogs there, allowing them to roam unleashed throughout the Parcel. Virtually all users of Parcel B and its trails reasonably believed that the City owned or controlled Parcel B and that the Parcel was part of Veterans Park and Quarry Park. As in the case of the trails, the public never sought permission and the owners of Parcel B never objected or interfered with the public’s use.
… Historically, the public’s use of the trails has been joined to its use of the entire parcel. Moreover, since City is herein authorized to bring this action on behalf of the public, it necessarily represents all public users. Accordingly, the referee finds that the whole of Parcel B has been dedicated to public use and that the public has acquired a recreational easement over the entire parcel.
To read more, and for links to the full text of the decision, visit the Save the Trail website.
Xasáuan Today 
One of the plaintiffs (the Loud One) who was seeking to ban public access has posted a comment declaring victory following the Herald’s coverage of Justice Agliano’s decision. Her twisted logic says that since the decision places the responsibility for maintenance of the parcel on the city, that her side has won (conveniently forgetting that the maintenance issue was only part of the suit they filed). The details regarding maintenance have yet to be worked out – the decision states that “The degree of maintenance should be consistent with the public recreational easement and its purposes.” Does this mean that the city is compelled only to maintain those areas of the parcel that are reasonably accessible to recreational users? What about that less-accessible areas that now require a substantial amount of work to restore them to a fire-safe condition? Are these still the responsibility of the homeowners?
Also- the decision mentions that fences may be erected to enhance privacy for adjacent homeowners. Does this mean the city is responsible for the costs associated with erecting and maintaining these fences? As a Monterey homeowner, I am allowed to construct fences and barriers along my property lines as long as I pay for them and they comply with existing city ordinances – do the homeowners affected by this decision expect or deserve any more?
Getting the public access issue resolved in favor of the community (and common sense) is worthy of celebration, but we need to keep an eye out for how negotiations regarding maintenance, privacy, and regulation (the plaintiff would also like restrictions on opening hours and “loitering” to be enforced) play out in the coming weeks.
This is great news! Regarding the maintenance, it seems like some kind of neighborhood work days could be arranged, building community as well as reducing fire danger and unsightliness. I would be the first to volunteer, but alas, I’m out of the area. As I recall, Mrs. Frus organized something like that long ago, recruiting DLI students to help out pulling genista from the Quarry.
Nine years ago when this started, all I ever said was that if the public was to use our private property of Parcel B, then the public must pay for the maintenance and liability of it. My lawsuit said basically that if the Association had to pay for and be liable for the public use of its private property, then the property had to be closed to public use. It is a liability that a private citizen cannot accept. All the City had to do was step up to the plate and agree to maintain and be liable for the public use, but it refused to do so. Since 2003 each of the owners of Parcel B has paid nearly $10,000 EACH for this public use of their land, while the City has paid NOTHING. Private citizens cannot be forced to pay for public parks on their private property. And we had the deed signed by the City that said “no trespassing”. So take your anger out on the City, not me. Justice Agliano has now put the maintainance and liability burden on the City where it belongs. Of course this is a victory for us. Don’t you get it?? This is what we have been asking for since 2000. What is wrong with you people? As for park hours and restrictions…the City wants this trail as a connector between 2 parks. Well then it would be subject to park regulatations, wouldn’t it? What you have no interest in understanding is that some 15000 people visit Vets Park and when the City put signs up in the late 90’s directing these strangers onto Parcel B, we have dealt with an odd assortment of strangers at all hours of the day and night. Sure, you take your nice little daytime walk with your off-leash dog and are home 15 minutes later. What you don’t see is the flashlights bobbing in and around my yard at all hours of the nights as campers/hikers (burglars/thieves/who knows?) decide to take the trail and get lost and use our yard to get to the street abd wander around the poroperty in the meantime. Do you know how unsettling it is? There is more to this story than a few neighbors strolling through the neighborhood. Any park needs hours and regulations..its the law, just like the one for leashes. Already the kids congregate in Quarry Park and you know they soon will move up the hill to this area once you guys blow the trumpets announcing the open house. Already our private property signs have been stolen…this just from Justice Agliano’s “tentative” decision. Two of my windows have been shot out in the back of my house. Things have been stolen from my yard. All in all, some of you are pretty over-zealous, one-sided, angry, selfish self-centered people. All I ever asked for is a safe place for my grandchildren to play…9 years later none of them have been able to play in my yard. I have asked that the City pay for the public use of Parcel B…9 years later it has not paid a dime. I have asked that the City assume responsibility if a member of the public is injured on Parcel B…9 years later the City refused to accept any responsibility. Have I asked anything that is not afforded me as an American citizen? Have I taken anything away from you? Have I broken a law? Have I done anything illegal? If you want to use Parcel B, then YOU should pay for it, not me or the little old lady in the Yerba Buena townhomes who can’t afford it. Justice Agliano agrees. And that is why it is a victory for me because the City has fought to squirm out of the maintainance for 9 years now. And what is your problem, JR, in that every where I look I see you slamming me? Do you hate me so much because I don’t want to pay for you to use the trail? Because I want your dog on a leash? Because I think private property rights are worth defending? What is your interest in this?
Your recollection of the facts leading up to this decision is certainly quite a bit different than ours (we could have sworn you were seeking to exclude the public from the parcel — and that the city’s refusal to pay for maintenance was also a result of your effort to exclude the public), but seeing as how you, the city and the trail users are all happy with Justice Agliano’s decision, it looks to us as though the problem has been pretty much solved. All that’s left is to negotiate some reasonable rules. Hopefully, that can be done in a spirit of understanding and cooperation – XT
Just to clarify the facts…for 2 years prior to the lawsuit, the City refused to maintain the property, refused to accept any liability of public use of our property, insisted on public use of our private property via a public pathway connecting the two parks, and ignored the open space deed the City signed stating “no trespassing by the public”. The City then went on the property and cleaned it for $14000, added a $4000 administrative charge for 1 weeks work, billed EACH of us owners for the entire $18000 and notified us that if we did not pay the City would file a lien against our property. So whatever your recollection may be, that is the true fact of what happened, and that is why we sued. No one wants to understand that the Giammanco’s do own this land as part of the HOA, that the City has refused to maintain and be liable for it for 9 years, that each HOA member has paid nearly $10000 each for maintainance, and the public has used it for 9 years FOR FREE. Not a dime of tapayer money has been spent on Parcel B. And the HOA is out on a limb for liability and scared to death. And that is why we sued. We were seeking to exclude the public from Parcel B because the City refused to pay for public use of it. Plain and simple. And Constitutional.
All you wanted was for the City to maintain the parcel and to avoid liability? Then we guess the widely reported story about how you stopped the Homeowners Association from transferring the parcel to the City must also be inaccurate. Just to clarify some more facts: the court ruled that the public has been using the parcel not for 9 years, but for more than 67 years (for free). The court also found that “particularly during the years 1990 and following, City expended substantial public funds to maintain and preserve Parcel B. The City utilized and paid its employees as well as California Department of Forestry crews including State prison inmates, to clear and eliminate fire hazards, remove brush and poison oak, control erosion and plant trees on Parcel B.” These findings certainly seem to support the widely reported version of events (i.e. that the city only ceased maintenance at public expense when you began attempting to exclude the public). Still, since all sides are happy with the court’s decision that the pubic has a right to use the parcel and that the City has an obligation to maintain it, perhaps it’s time to stop dwelling on details that no longer matter, throw a big neighborhood party, and all be friends again. – XT
Well said. The people who walk the trail are your neighbors. Why not try to meet and greet them on the trail? Your grandchildren would love it. Let them walk the land…That is the best gift you could give them as a grandparent.
XT…your version of why the City ceased maintenance is totally untrue. In the 90’s the City began maintenance because it received a bogus deed from the Skyline Ridge Homeowners Association which the City and the Association believed transferred the ownership of Parcel B to the City. And so the City began to maintain the property. It ceased maintenance when it was revealed it did not own the property. Our Association owns the property. The lawsuit was filed only after the City Attorney’s office wrote us in 2000 and met with us many times and would not change its stance, which was this….the City demanded the public use of our private property, Parcel B, and we would pay for all the maintenance of it and we would insure it and we would assume all liability for it. I have said this a million times…that, along with the Deed the City signed, is the reason the lawsuit was filed. The City ceased maintenance, demanded we do it, demanded public use of the our property, and did not back down. That is why we sued and asked that the public be excluded for liability purposes. I wish people would understand our position. It is a detail that matters because the City had no right to do what it did and has created all this animosity in the neighborhood. The City should have assumed the maintenance and liability to begin with, but the City Attorney’s office refused to do so.
As for my grandchildren, thank you for your comment. They have taken the walk before. My problem is that with so many strangers visiting Veterans Park, such an odd assortment of men that I have seen walking behind my home…I am afraid to let the children play in the yard unattended and so they have been deprived of that joy. I think what the City has done is shameful and unfair to all of us.
What puzzles us is this: If your association didn’t want liability or responsibility for Parcel B, all it had to do was transfer it to the city (as the Skyline Ridge Association had previously tried to do). What was reported in the local press was that your association tried to do just that, but that you protested against the transfer and managed to block it. We understand you then sued requesting a finding that the public had no right to use Parcel B AND demanding that the city maintain Parcel B at public expense. If the court had not ruled that the public has a right to use Parcel B, they certainly would not have ruled that the city has an obligation to maintain it. As it is, the court has ruled that the public does have a right to use Parcel B and that that the city must therefore maintain it as a park. Could you not have achieved this same result years ago simply by not getting in the way of your association’s transfer of Parcel B to the city? – XT
An anonymous prankster has been posting signs that falsely state the second annual Right To Hike Mother’s Day Hike & Picnic has been cancelled. There has been no such cancellation – the Mother’s day event will proceed as scheduled!
Please join us! Details at http://righttohike.org