Does Nicasio rancher Mark Pasternak have a right to the road that leads to his land? And if so, just how heavily can he use it?
Those questions, which present a serious financial threat for Mr. Pasternak’s Devil’s Gulch Ranch, were the center of a two-week trial that concluded last Thursday after years of dispute with his neighbors, Joseph and Kathy Jolson. Marin County judge Roy Chernus will issue a decision this fall.
The Jolsens lost a 2012 suit against Mr. Pasternak over a youth camp at Devil’s Gulch, and filed the road suit the next year. They say their neighbor does not have an easement through the portion of the unpaved Road to Ranches that runs on their property—the only built road to reach Devil’s Gulch.
(Another ungraded road would require a large amount of money for studies, permitting and construction to be useable.)
If Mr. Pasternak does in fact have a right to the road, they say, he has abused it with too many vehicles.
In his closing arguments, the Jolson’s lawyer, Jeffrey Lowenthal, argued that Mr. Pasternak is “externalizing the effect of the ranch onto his neighbors,” quoting another neighbor who spoke on the witness stand.
Yet Mr. Pasternak’s lawyers, Lawrence Basel and Peter Prows, say relatively newer activities on the historic ranch—a vineyard, a Y.M.C.A. summer camp, special events and ranch tours—don’t add that many car and bus trips to the historic baseline.
Road rights
Whether Mr. Pasternak has a right to use the road depends upon whether he has an easement for the portion of road that crosses the Jolson property.
An 1866 deed transfer describes the general path of an access road through the site, but Mr. Lowenthal says that deed specifies neither where the road begins nor how wide it is. And Mr. Pasternak’s own deed, he argues, doesn’t even mention the easement.
Yet Mr. Pasternak’s lawyers argued that the road described in the historic deed should be considered the same road that exists today, saying there is no evidence of another abandoned road in the area and that the Jolson’s own deed refers to the 1866 document.
Regardless, Mr. Basel argued, easements do not have to be in precisely the same location over time; in addition, because they “run with the land,” they do not need to be repeated in subsequent deeds.
In cases that lack written documentation of an easement, a person can still argue an implied right to use another person’s property; in short, if he or she proves both regular use of another person’s property and the property owner’s knowledge and consent of that use, the person acquires a “prescriptive right” to the land.
Mr. Jolson, who bought the property in the 1990s, said he was surprised to learn about prescriptive rights when he started looking into the issue. “It’s a little like the Wild West in modern times,” he said during the trial.
Still, there is a loophole. If the property owner provides “permission” at a certain point in time, the prescriptive rights freeze, and the permission can be revoked.
In 2013, the Jolsons sent Mr. Pasternak a letter granting permission to use the portion of road for virtually any reason. Because there is at least a five-year lag time for prescriptive rights to take effect, the letter effectively limited Mr. Pasternak to his 2008 level of use.
Question of burden
Devil’s Gulch Ranch has long been used for agriculture, first as a dairy and, in more recent decades, for raising animals like pigs, rabbits, sheep and quail. Mr. Pasternak planted his first vines in 1980, growing Pinot Noir grapes used by Bolinas winemaker Sean Thackrey and others.
Like many other agricultural producers, he has also diversified operations. These, his lawyers stressed, are permitted and agriculturally related. For instance, in the late 1990s, Mr. Pasternak started a summer day camp meant to expose elementary and middle school students to nature and a working ranch.
In 2004, the Y.M.C.A. began operating the camp, bussing kids on 13-seat and 24-seat buses—and, for a time, on a hay wagon hitched to a bus. (The Jolsons objected to the safety of the hay wagon, which is no longer used.)
Over the years, Mr. Pasternak has also hosted ranch tours, open houses and private parties; he also has on-site retail sales. For some events, people are brought in on larger, 30-seat buses.
In 2009, Mr. Pasternak applied to legalize the number of open houses he was hosting and to start an overnight youth camp. Meeting opposition from neighbors and the Nicasio Landowners Association, he dropped the overnight camp, but the county legalized up to 12 tours or open houses a year and four special events. (The county says access to the road itself is a private legal matter on which it will not weigh in.)
One of the sticking points during the trial was the number of trips Mr. Pastenak’s operations necessitate.
A 1976 document—at the time meant to resolve a dispute over road maintenance, and signed by a number of neighbors who used Road to Ranches, including Mr. Pasternak—stipulated that the “roadway shall only be used…for low density access in conjunction with residential and agricultural use common to the area.”
Mr. Pasternak says ranching and farming operations result in 41 trips a day, or close to 15,000 tips a year. During the trial, Mr. Lowenthal estimated that other permitted activities add over 200 extra annual trips.
And even though the farm tours were legalized in 2010, they were happening before 2008, Mr. Pasternak said.
There has been “no meaningful change in the use of this road at any time since 2008,” Mr. Basel argued.
(The Jolsons’ lawyers also allege that Mr. Pasternak has broken the rules of his use permit by mischaracterizing events he was organizing. In March, county planner Curtis Havel declared that all 11 violations alleged by neighbors were inaccurate or outside the county’s purview. Neighbors have since filed more complaints, which are still under investigation.)
The Jolsons describe the heavy use of the road as both an invasion of privacy and a liability concern. The one-lane dirt road sports S-curves and maneuvers around steep slopes. If there were an accident involving a bus full of children on their portion of the road, they could be liable, they fear.
Given those concerns, Mr. Lowenthal said during closing arguments, “If the court finds the easement exists, it should limit it and require maintenance.” He added later that “unrestricted, unlimited use on this one lane road is simply an unreasonable burden.”
(Mr. Pasternak’s lawyers displayed a picture of a drilling rig brought in by the Jolsons as proof that his neighbors have also invited large, cumbersome vehicle onto the road.)
In his closing statements, Mr. Basel disputed the cause for the lawsuit. “This case isn’t really about a road,” he argued. Instead, he called it the result of animosity over a series of disputes starting in 1998 over the placement of a fence and peaking with the protested overnight camp.
Mr. Lowenthal called that ridiculous. “[The Jolsons] are here as a last resort,” he rebutted.