Point Reyes Light - October 14, 2004
The odd fight over access to open space
By Jim Kravets
Second of Two Parts
San Geronimo landowner Uli Zangpo is attempting to give the county two public-access easements through his property to the Gary Giacomini Open Space Preserve.
However, numerous members of the public don’t want the gift, arguing that the public has used an existing route to the wildlands for so many decades that the public long ago became entitled to a prescriptive easement to the route, the old Manzanita Fire Road.
However, no court has ever perfected this easement, and Zangpo told The Light his donation will guarantee the public’s access. He would like to give an 18-month renewable easement for public access via the existing route; however, he said, as soon as possible he wants to replace that easement with two others, one for emergency vehicles and one for the public.
Wants ranger patrols
Zangpo said his immediate goal is to allow for Open Space ranger jurisdiction to patrol on the present route. He noted that while hiking with Open Space District staff, he found marijuana patches on his land; he blames Wiccans (good witches) for leaving burned-down candles where they could start wildfires; and he has found sites where people have camped and left trash.
Wants to preserve plants
The reason he wants to eventually replace the existing access route with two others, Zangpo said, is to preserve a large cluster of very rare plants. The new routes would go around the cluster, one route on each side. This means, he said, that in one area the easements would be roughly 400 feet apart.
In spite of what seems like a win-win-win situation for plants, public, and Zangpo, some people (particularly Marin Horse Council and the San Geronimo Valley Planning Group) take issue with Zangpo’s proposal.
In fact, the issue has proven so controversial that the Board of Supervisors, who last week were expected to accept the temporary easement, removed the item from their agenda at the last minute to allow time for further review.
Easement now changed
Open Space District staff this week told The Light they have renegotiated the deed to the easement in response to the public’s concerns.
In an impassioned letter distributed Sept. 9 to members of the Horse Council and San Geronimo Valley Planning Group, Valley resident and horse council member Delos Putz sounded an alarm regarding Zangpo’s intentions.
"Without any input from any public ‘community,’" Putz wrote, "Gary Giacomini, attorney for Uli Zangpo, has persuaded the County Counsel’s office, Marin County Open Space District, and [Supervisor] Steve Kinsey that neither the MCOSD nor the public have any right to use the Manzanita Fire Road.
"I have no idea what the legal basis for this change of position might be. This is a complete change of the county’s previous position that the community’s rights to use the Manzanita Fire Road were fully preserved when the Giacomini Open Space was created," Putz wrote.
Dispute over rights
Putz, whose home is next to Zangpo’s land, said that at the beginning of September, he ran into Zangpo working on his property. "[Zangpo] told me that neither the county nor the public had rights to the Manzanita Fire Road and that the county was going to accept an 18-month easement."
Putz was enraged. The community, he said, never considered that access to the Manzanita Fire Road could be restricted by a landowner and that a previous easement did not already exist.
Zangpo’s offer for new easements should be looked at critically, said Putz. "The county has taken a narrow view of the rights of the public," he told The Light. "There’s an implicit danger in the inadequate easement deed being presented. We have to be very careful about selling our birthright for a bunch of pottage."
Prescriptive rights
Horse Council president Bob Weems of San Anselmo said at issue are "prescriptive rights" and the change in the county’s attitude towards those rights. The public has ongoing, prescriptive rights of access – even across private property – if it can be shown that people have used a route for at least five years preceding 1972 when new legislation went into effect. They are, in essence, the trail version of squatters’ rights.
County supervisors in 1990 successfully invoked prescriptive rights in a suit brought against Valley developers who obstructed a trail that children had used to walk to Lagunitas School.
"There is good reason to believe Manzanita Fire Road has existed at least since the 1940s and probably earlier," Weems told The Light. "The public has been using it to access [wildlands] throughout that period. That conveys prescriptive rights. They’re real and they exist."
Impact on other trails
County government’s change in attitude towards these rights is ominous, Weems warned. "Existing rights are being lost and the county is not stepping forward. In the past they have worked hard to protect them. What seems to be happening now is that the county is backing away, essentially saying if rights aren’t recorded they don’t exist."
Weems noted that situations similar to Zangpo’s exist throughout Marin county. "This has significant impact on public access and public space," he said.
Gary Giacomini, Zangpo’s attorney, doesn’t accept the notion of prescriptive rights to the Open Space Preserve named after him. "Everyone wanders around everywhere in this county and they think it’s their right," he said. "Please understand this: the public currently has nothing, no legal right to access. What Uli [Zangpo] did is he gave the public 18 months of access."
Pursuing prescriptive rights at this point is misguided, said the planning and acquisitions manager for the Open Space District, Dave Hansen. "Such rights can only be obtained through legal processes. Why go through that? That’s stupid. We have a willing landowner wanting to dedicate easements.
Suit wouldn’t ‘make sense’
"It doesn’t make sense to go after [prescriptive] rights. For one thing," Hansen noted, "in court, we could lose."
Weems called the deeded, 18-month easement that Zangpo, Giacomini, and county government worked out a "flawed instrument." As written, Weems said, the easement could put Zangpo in default with his lender, the previous landowner, and this could result in an invalidation of the easement.
"The document currently won’t do what he and his attorneys are saying it will do," Weems insisted.
Putz’ alarm resulted in a full house at the Sept. 13 Valley Planning Group meeting. On hand to explain the predicament were acquisitions manager Hansen and planner James Raives from the Open Space District and Kinsey aide Liza Crosse.
"Many are very concerned," Planning Group president Ken Naffziger told The Light. "It’s a scary proposition. People don’t know about it, and it’s happening really fast. The Planning Group is in shock and doesn’t know what they want, but they absolutely want access. People wonder what will happen if there is no trail built in 18 months when the temporary easement expires."
Public benefit asserted
"Those in the community thought when the land was made into open space there was an easement there," Crosse told The Light. "But the community was so upset about an entitlement they were sure they had they didn’t hear what was said. We have a property owner offering a real community benefit."
"I have no interest in restricting access," Zangpo told The Light. "If I wanted to do this I would have already. My reason for saying 18 months is to put a fire under the county’s butt. Nothing happens in the county unless they have to. I hope the date makes people say, ‘This needs to be addressed.’"
Zangpo earlier said the 18-month easement grant is extendible based on mutual agreement. At the time, he also said that where the money will come from to construct his proposed trail and fire road is still up in air, but he said he is willing to participate in the trail building.
Resents public reaction
Zangpo, who currently lives in Forest Knolls, said he doesn’t appreciate the adversarial tone he’s encountered in the community. He also dismisses rumors that he’ll subdivide the property. "I want to build my own house and then one for my mother. That’s all."
Zangpo said he’s disappointed at being depicted as "that developer." "I take my role as steward of the property seriously," he told The Light. "That’s not going away. I intend to create an ideal easement that serves as the gateway into Giacomini Open Space Preserve."
County government last month was surprised by the public’s concerns about the easement, and the Board of Supervisors postponed taking action until Oct. 26. "They said they didn’t want a knock-down brawl at the supervisors’ meeting," Zangpo reported.
Easement renegotiated
County staff this week said the potential problems cited by the public are being taken care of.
"We wanted to see if the landowner would tighten up the easement language," Hansen of the Open Space District said. "We’ve renegotiated the easement with [Zangpo] to indicate that the public and the district will have permanent access rights."
Horse Council president Weems had expressed concern as to "who pays for the new trails." Zangpo’s proposal "improperly shifts the burden and expense to the county," he said.
Hansen told The Light that a new draft of the easement deed prepared by district staff clarifies that issue. "This draft reads, ‘The landowners agree to pay the entire costs of construction of the permanent trail easement,’" the Open Space District’s acquisitions manager said.
Manager Hansen estimated the construction could cost Zangpo $50,000 or more. "I’m pretty impressed," Hansen said. "It’s not cheap. We’ve seen nothing but positives."