NewLeftHeaderSNN

clear sky

82.6°F

Newport Beach

Volume 6, Issue 76  | September 21, 2021


Back Bay property owner to county: “cease” efforts to remove fence; county not “taking any action” on land or fence

By SARA HALL

Following the failure to purchase an adjacent parcel, a local property owner sent a cease-and-desist letter to the county last week to try and stop the removal and relocation of a bordering fence after officials announced that the approximate one-third of an acre of land in Upper Newport Bay would be opened up to the public.

Attorneys for Buck Johns, property owner at 2600 Mesa Drive, sent a letter to the Orange County Board of Supervisors on July 8 requesting the county “cease any efforts to remove the fence in order to allow settlement discussions to occur,” warning of potential litigation if the removal efforts continue. 

Earlier this year, Johns attempted to purchase the property for $13,000. The deal, which included declaring the land “abandoned” and no longer used by the public for park purposes, was halted by hundreds of petitions signed by OC voters before it made it through the approval process.

A. Patrick Munoz of the Irvine-based law firm Rutan & Tucker, LLP, authored Johns’ letter to the county. His company was retained after the Johns’ effort to purchase the property was unsuccessful and they wanted “to explore other options by which they may assert their rights to it.”

Johns declined to comment for this story. 

OC Public Information Manager Molly Nichelson confirmed receipt of the letter in an email to Stu News Newport on Monday and said the county is currently assessing the next steps.

There are no changes to the property at this time, she noted. 

On Wednesday, July 14, the county’s Chief Real Estate Officer Thomas Miller sent a letter to Johns confirming receipt of, but not responding to, the cease-and-desist letter.

According to the letter from Miller, the OC Board of Supervisors provided direction to county staff on the matter. 

“The county will not be taking any action related to the subject property or the fence that currently encloses the subject property,” Miller wrote.

An added closed session item on the board’s Tuesday agenda noted a conference with legal counsel regarding anticipated or significant exposure to litigation, but the county representatives did not disclose any information on whether the matter could possibly be related to the Upper Newport Bay property. Stu News Newport could not confirm what the anticipated litigation was related to prior to publication.

Back Bay Aerial Map

Click on photo for a larger image

Courtesy of the County of Orange

An aerial view of the disputed parcel and surrounding land

The property is still owned by the county and is “identified as open space,” Miller wrote in the county’s letter to Johns.

“As such, it should remain in that natural state and no inconsistent activities should take place thereon,” Miller said. 

It is currently enclosed by a fence as part of Johns’ adjacent property, Miller explained.

Supervisor Katrina Foley, whose district covers Newport Beach, said on Tuesday morning in a phone interview with Stu News Newport that the latest move by Johns after the county denied the purchase was unfortunate.

“It’s disappointing that Mr. Johns is trying to use his influence and wealth to threaten the county over what is an undisputable fact, that property line has been determined and the county is going to move the fence to the property line,” Foley said. 

She suggested moving the fence to the property line, which has been determined by the surveyor, unless the board decides otherwise.

Earlier this year, Foley pulled the purchase proposal from the April 13 board meeting and continued it until May 11. She didn’t think it was “right to give away land like this,” and was concerned that neighbors weren’t properly noticed, she said at the time.

The item was deleted from the May 11 agenda after about 1,300 petitions were sent to the county opposing the abandonment of the land.

The law states that if at least 200 voters sign a petition objecting to the abandonment, the board has to either terminate the proceedings or submit the question of abandonment to the voters at the next election.

Since more than 200 registered Orange County voters signed the petition, the land could not be declared abandoned and the sale was blocked. 

Petitioners argued that it’s a bad deal for the county, the open space is beneficial for the public, and that it’s part of the heritage and beauty of Orange County. Opponents to the sale have argued that the land was seriously undervalued considering the $13,000 price tag on the previously proposed purchase deal.

According to the Orange County Treasurer-Tax Collector, a similar adjacent parcel is assessed by the county at about $1.18 million.

Johns previously explained that the county offers an approved list of appraisers to choose from. A second appraiser, also with the county, has to sign off on the submitted amount. The company Johns chose, CBRE, Inc., noted in its January 2020 appraisal that the parcel is in a good location, but effectively landlocked, with no public street frontage or access available. 

Johns had additionally agreed to pay a $20,000 processing fee for the transaction, according to the county staff report on the deal.

Still Protecting Our Newport (aka Stop Polluting Our Newport) led the effort to prevent what it said would be a “below market value sale” and to get the fence relocated to the “true property line” or removed entirely.

SPON, a local nonprofit public education organization, shared the letter on its website, writing that Johns was “threatening a lawsuit and hefty attorney’s fees” if the county proceeded, “as well as a claim for compensation for the public’s use of a dirt trail on another part of his property.”

Back Bay fence and trail

Click on photo for a larger image

Photo by Jim Mosher

A fence runs along the edge of the disputed parcel of land in Upper Newport Bay

They are investigating the potential for a number of claims, including an inverse condemnation, Munoz said in Johns’ letter to the county. If successful, Munoz said the Johnses would be entitled to an award of litigation expenses including attorney’s fees. 

“This claim will be based on the dirt trail located on the Johns’ property, near its southerly property line, and the fact it is being used by the public as part of the county’s open space program on property adjoining the Johns’ property,” Munoz wrote.

If the dispute heads to court, the circumstances and title history of the property would entitle the Johns’ to, “at minimum, to an equitable easement, in perpetuity, over the subject property,” according to Munoz. 

During a January 7 OC Parks Commission meeting, OC Parks Director Stacy Blackwood said the “incredibly well-used” pedestrian and bicycle Bayview Trail runs along the perimeter of Upper Newport Bay.

“Upper Newport Bay is a jigsaw puzzle of property jurisdiction,” Blackwood said, with ownership between Newport Beach, Costa Mesa, Orange County and the state. “It can be incredibly confusing to try and unpack any of the real property transactional issues in and around Upper Newport Bay.”

Buck and Colleen Johns have owned their Mesa Drive property for more than four decades after buying it from the Holstein family. 

According to Johns, the triangular parcel of land at the middle of the dispute, which runs between the back of the Johns’ property and the Bayview Trail, was apparently taken through eminent domain for a proposed extension of University Drive through the area.

Although, some disagree with that account.

“It appears instead, that the previous owner subdivided his property – historically part of the Irvine Ranch – in 1969, selling the western part to create the present-day 2412 Mesa Drive, and then again in 1970 to deed the southern piece to the Irvine Company, before later selling the remaining piece to Mr. Johns,” SPON officials wrote on the organization’s website.

According to Johns, a fence has existed near the southern border of their property since before they purchased it in 1977. The fence line is partially on the property. 

In a very detailed chronology of the property, city watchdog Jim Mosher includes photos and descriptions of the movement/replacement/additions to the fence over the years. 

Munoz also argues in the letter that, until recently, the Johnses and the county believed the property belonged to the Johnses.

Although, past documents related to the land identify it as currently being county-owned.

Munoz added that the county’s actions over the years have made it “crystal clear” that the only intended use for the land was for roadway purposes in the event University Drive was extended between Jamboree Road and Irvine Avenue.

After the county scrapped plans for the road extension in 1989, the OC Board of Supervisors accepted an “irrevocable offer of dedication for the Westbay and Bluff parcels” from the Irvine Company, which included the now-disputed 0.32 acres of land in Upper Newport Bay. 

The area was meant to allow for “public use and enjoyment of this property, with its unique natural resources and commanding vistas of the Upper Newport Ecological Preserve,” according to county records.

In the resolution the board was set to vote on earlier this year, county staff reference the 1989 dedication offer from TIC and noted that it was restricted for “passive recreation purposes only.” 

While no recreation amenities exist on the parcel at this time, as staff pointed out in the report, it is currently fenced off from any public access. County staff explained the parcel could be abandoned because it “will not be used by the public and it is not appropriate, convenient, or necessary for park purposes.” Munoz also noted in the letter that the Johnses “personally and financially assisted in the construction of a sediment catch basin and appurtenant facilities on and adjacent to the subject property.” 

They paid $25,000 toward the project to protect their property and the subject property from damage from erosion, flooding and sediment residue, according to the letter.

Opponents argue that the Johnses contributed to constructing the basin because water runoff was eroding their own private property and that the basin isn’t located on the disputed parcel of land.

Ultimately, it’s their desire to avoid litigation, Munoz concluded.

Munoz said they are hopeful the county “will respond in a favorable manner considering the county will suffer no harm by leaving the fence where it has been for as long as anyone can remember.”

“While a negotiated resolution that is mutually beneficial to both sides remains their very clear preference, recent events may leave them with no choice other than to pursue litigation,” Munoz wrote in the letter.

They are concerned about the “potential change to the status quo that has existed for over 35 years” if the county follows the intent as mentioned by Foley to remove/relocate the fence to the surveyor-determined property line.

“In as much as the county has no intent of ever pursuing the above noted roadway project, it is not harmed in any way by the grant of an equitable easement and the continuation of the status quo,” Munoz wrote in the letter. “In contrast, the loss of real property, as would be suffered by the Johns in the event of a change to the status quo, has consistently been held by courts to be irreparable.”

Supporters of unfencing the land claim that the fence is to the detriment of the public and the environment.

“This fence around public land not only prevents public access to and enjoyment of it, but impedes public conservation efforts and the ability of wildlife to traverse the natural corridor,” SPON officials wrote on the website. “It creates a pinch-point in the ecosystem.”

Who we are:

Tom Johnson, Publisher - [email protected]

Lana Johnson, Editor - [email protected]

Shaena Stabler, Co-Owner - [email protected]

Amy Senk, Duncan Forgey, Len Bose, Nancy Gardner and Sara Hall are our writers and/or columnists.

Michael Sterling is our Webmaster & Designer.

Email: [email protected] for questions about advertising

949.315.0259

Email: [email protected] with news releases, letters, etc.

949.212.1499

© 2021 Stu News Newport, LLC  |. All Rights Reserved