The second of a two-part report on pedestrian access in town
During the course of investigating why some neighborhoods in La Jolla do not have pedestrian access (“Why No Sidewalks?” La Jolla Light, June 23), we came across old subdivision maps that revealed the existence of a series of “easements” throughout the hilly areas of La Jolla developed in the 1920s: Ludington Heights, Country Club and Muirlands.
To confirm the existence of the easements, the Light acquired parcel maps of the areas, and found that 17 of these easements are still on the charts. Ten of them run straight into someone’s property. The remaining seven connect public streets and have different designations — “lane,” “path.” In the Country Club area, two of them have names of their own — Lobelia Path and Mint Canyon Path. Only Lobelia Path exists in reality today; the others have been fenced off, overgrown by vegetation or blocked by gates and driveways.
“That’s what they call ‘paper streets,’ ” said La Jolla Develpment Permit Review Committee member Mike Costello. “They seemed like a good idea when the city was laid out, but then things happened and the city decided to direct traffic some other way.”
What is an easement?
Environmental and land-use attorney Marco Gonzalez explained that an easement is “a burden on a piece of property that allows someone or something to be on that property.” There are different types of easements; some permit the existence of utilities, electricity posts, phone towers or sewers, and others mark the presence of public thoroughfares (right-of-ways).
Easements can be private or public. However, Gonzalez pointed out, “A public easement says it’s for the public use and enjoyment, but that doesn’t necessarily mean that the public gets to go on it; it could be a public easement for a public infrastructure.”
In the subdivision maps of Ludington Heights, the easements are described as “5-foot paths,” in Muirlands, they’re referred to as “lanes.” Although the language seems to reveal a straightforward intention for pedestrian access, the experts don’t necessarily agree with that notion.
“(In Ludington Heights) they used those paths to run sewer and utility lines,” said land-use expert Mike Pallamary. However, the map differentiates two kinds of easements, “5-foot path” and “10-foot easement for water pipe.”
Bill Harris, communications officer with the City of San Diego added, “A 5-foot path is not typically a sufficient pedestrian path. It’s not what we would consider a pedestrian path. It might be a pathway that would grant access to utilities, access to something we needed to provide the properties with, that sort of thing.”
But after studying the maps used for this report, Gonzalez concluded that many of them seemed to be intended for pedestrian use. “A number of the identified pathways, walkways, and (likely) stairways are not visible. However, it’s hard to tell from the maps whether these were intended to be public easement for community mobility, or whether they were intended to be access opportunities for individual parcels.
“So, for instance, on Muirlands Drive, the ‘lane’ between parcels 22 and 23 is clearly not there. But, whether this was required for fire access, ingress/egress, or some other reason, I can’t tell. Similarly, the ‘walk op’ connecting Castellana Road and Crespo Drive seems as though it should provide a public thoroughfare, but clearly does not exist on the grounds … I couldn’t find any of them, and wonder whether they were extinguished by agreement of the parties, or just blocked over time.”
In Muirlands current parcel maps, an easement connecting Muirlands Vista Way with Muirlands Drive has a side comment that reads “public walk.”
Kristy Reeser, deputy director at the street division of the City of San Diego Transportation and Storm Water Department said that the use that the easements were intended for varies a case-by-case. “(These easements) are not surprising to us, there are ‘paper streets’ all over the city, some of them are entries to canyons. They were originally mapped out by a developer or somebody a long time ago,” she said.
Who maintains an easement?
The answer to who is responsible for maintaining a designated easement is not an easy one. In theory, the California Civil Code states that a private easement must be privately maintained, but when it comes to public easements, “this gets complicated,” Pallamary said. “The city never owns any streets, but it has a public right on behalf of the public to use the streets.”
Harris explained, “You have responsibility for everything to the center of the street in front of your home.” It’s the owners responsibility to maintain the sidewalk adjacent to their property. So, it could be argued that it was the owner of the abutting property who had to maintain designated easements.
But Harris pointed out, “every area, depending on when it was built, is affected by different kinds of regulations.”
Reeser clarified, “If they are not a developed street, and are not opened for traffic, the city does not maintain ‘paper streets’ unless they are an imminent safety hazard. Unless they are part of a park, then Parks and Recreation maintains them. Generally, it means vehicular traffic.”
Gonzalez had a direct answer to the easement question. “Nobody needs to maintain it. Just because the easement is on paper doesn’t mean it has to be improved or maintained or anything. The city would have to make sure that the public use of that easement doesn’t degrade the burdened property.”
In the coastal areas, Gonzalez continued, the existence of “prescriptive easements” is common. “A prescriptive easement is when the public gets a right to go over someone’s property, just by virtue of having done it for more than five years,” he said.
The easements found by La Jolla Light have clearly not been used for years. Overgrown, fenced off, or encroached upon, they just aren’t there. According to the San Diego Municipal Code, that is illegal.
“It is unlawful for any person to erect, place, allow to remain, construct, establish, plant, or maintain any vegetation or object on any public street, alley, sidewalk, highway, or other public property or public right-of-way, except as otherwise provided by this Code,” the Municipal Code reads.
But not all easements that appear in the original subdivision maps are found in the current parcel maps. In all likelihood, these easements have been formally “extinguished.”
Pallamary, who has worked for property owners who had effectively extinguished easements that ran through their lots, explained that the process starts by the owner seeking a vacation of the easement with the city. “The easements are no longer footpaths, in other words, they have no function and stuff grows on it, so the city has gotten rid of a lot of them. Many property owners have inadvertently, fenced them out. The fact that the city doesn’t observe these easements or protect them, speaks volumes of their lack of function,” he said.
But, Gonzalez argued, before making changes on their land, property owners have to request title reports. “When you get a permit to build your driveway or your fence, or whatever you’re going to build, the city always looks at the title reports to see if there are easements on that part of the property. Often people go and build stuff without getting permits, and that’s where they trespass onto the easements.”
However, Harris said, title reports don’t always provide easy-to-read information for the average user. “Unless you literally get a survey to show what those distances mean, you are probably operating from an assumption. If you don’t see an open and accessible pathway that was once a pathway, may in fact now have been incorporated into your property. That assumption isn’t malicious, but it may be mistaken.”
Gonzalez added, “I think the question is more ‘Who can enforce the easement?’ versus ‘Who must maintain the easement?”
Can these paths be enforced?
“Anytime there’s a public easement, the public can use it, the public can enforce it, or the city could enforce it,” Gonzalez said. “Typically, what happens is you call code enforcement, and officers come out and say, ‘Hey, you built a fence or a structure over the easement and you didn’t get permits for it.’ ” If the easements were to be enforced, he added, it would be taxpayers paying for the cost of building them.
Pallamary expressed concern with the high cost of enforcing the easements. “Can you imagine the costs associated with opening these paths up? It would be prohibitive, and I’m not sure at the end of the day if the rewards will be that beneficial. It’s a cost-benefit analysis,” he said.
Harris pointed to an easement issue that occurred in the Rolando area. Some 15 years ago, the city found out that several staircases had been placed to connect properties through the canyons. It turned out the easements there were considered city facilities that had to be maintained. “Upon that point, the adjacent property took care of them,” he said.
In the case of the forgotten easements unveiled by La Jolla Light, Harris said the city will study them “on a case by case basis.”
“We don’t ever want to give up public access where public access is appropriate and serves the public good,” he said. “We would never give up land that was supposed to be for the good of San Diegans as a whole ... in terms of enforcement, based on the information you are providing, we need to look at every one of these to see if they are in our inventory or right-of-way, and then we have to make a determination of whether they need to be maintained.”