Attempted Sale of 0.32 acres of Upper Newport Bay Nature Preserve as of September 2022: abandoned sale criticized by Grand Jury, Notices of Violation issued by Coastal Commission and State Lands Commission, but Supervisors refuse to remove private fencing
Without clear announcement, the promised Board discussion of a response to the CCC Notice of Violation came in closed session as Item SCS3 on the Board’s September 13, 2022, supplemental agenda, where it was listed only as “CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – SIGNIFICANT EXPOSURE TO LITIGATION.”
Similar to the August Notice of Violation from the California Coastal Commission, on September 9, 2022, the California State Lands Commission sent the OC Parks Director a letter informing him the County’s allowing a private fence on public trust land violates the County’s duties as a holder of that trust and ordering its removal.
As Item S37J at its August 23 meeting, the Board of Supervisors approved a response to the June 9 Grand Jury report stating the County would not comply with requests to remove the fence because they were “unreasonable” and “unwarranted.” They also asked staff to provide a plan to respond to the August 17 CCC notice.
On August 17, 2022, the California Coastal Commission served OC Parks with a Notice of Violation that concurred with the OC Grand Jury findings and asked the County to remove the fence from public land.
On July 8, 2021, in response to a request to move his fence back to his property line, Mr. Johns, the adjacent property owner, through attorneys, sent a letter to the Board of Supervisors threatening a lawsuit and hefty attorney’s fees if the County attempted to proceed with this, as well as a claim for compensation for the public’s use of a dirt trail on another part of his property. Despite the requests for removal of the fence in the petitions, the Board of Supervisors apparently met in closed session on July 13 to discuss Mr. John’s attorney’s threat. The following day, the County’s Chief Real Estate Officer sent a letter to Mr. Johns assuring him the Board has directed County staff to leave the property as it is. On July 28, two residents served the Supervisors with a cure or correct letter seeking to void this improperly-noticed action. With no response from the County a Brown Act violation lawsuit was filed.
Prior to that, in a memo dated May 6, Orange County’s Chief Executive Officer deleted from the Board of Supervisors’ May 11, 2021, agenda the matter originally scheduled as Item 46 — to consider completing the sale to the abutting homeowner of 0.32 acres of Upper Newport Bay Nature Preserve land that the County has allowed the homeowner to privately fence in for the last 30 years. A May 7 newsletter from Supervisor Foley says OC Parks will work to “revoke” the private fencing on public land. SPON had written to the Board of Supervisors expressing its concerns (see also our Letter to the Editor).
Separately, a petition objecting to the sale (available below) was being circulated, and received many more than the 200 signatures of registered Orange County voters needed to block the sale. The circulators reportedly delivered 1,361 petitions to the Board prior to the meeting and an unknown number more were sent directly to them.
What you can do:
- Express your concerns about private fencing blocking access to dedicated public trust park land to the Board of Supervisors at: email@example.com
- The County of Orange proposed to sell to the adjoining homeowner for $13,000 the portion of the Upper Newport Bay Nature Reserve outlined in red in this aerial map prepared by OC Parks (the green tint highlights land donated to the County for park purposes in 1989, accepted by the County as dedicated park land in 1990 and accepted by the state as public trust land in 2004):
The lower parts of the red triangle proposed to be sold are a fence (see, also, title image, above) that has blocked public access (and access by nature) to this piece of land for much of the 30 years it has been part of the Nature Preserve — but the fenced land has always been open and accessible to the adjoining homeowner:
SPON, and many others, sought to prevent the County from completing the sale, and to get the fence relocated to the true property line (which is the curved top of the red triangle) or removed entirely.
The sale was successfully blocked, but the County refuses to take action to remove the fence, effectively leaving the public’s property as part of a private estate.
- Additional recent photos of the area, including panoramas, can be viewed here.
Why We’re Watching:
- The preservation for nature and for future human generations of the Upper Newport Bay Ecological Reserve and Nature Preserve was the culmination of a hard-fought battle over many years. SPON supported and participated in it. We see no reason to give up the fruits of that struggle.
- This fence around public trust 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 (the green area) to the north of the paved bike and walking trail. It creates a pinch-point in the ecosystem.
- The reasons the homeowner suddenly wants to purchase the property, other than to add value to his private holdings, have not been made clear. But even if they are benign, no deed restriction is being proposed (County Parks officials suggest restrictions on future use would lower the value even below the $13,000). So there is no guarantee future private owners of the triangle would not attempt to develop it.
- Even if there were a reason to sell the land, which SPON does not believe there is, the price the County is being asked to accept represents at best a tiny fraction of its true value.
- The County itself assesses the land value of the extremely similar privately-owned adjacent landlocked 0.36 acre APN 439-051-10 (the quadrangle touching the red triangle at its upper right corner) at $1,186,852. If that is a more accurate valuation, and if this homeowner through this sale were able to establish a “fair market” value of $13,000 for “his” nearly identical parcel, it appears he would be adding roughly $1 million to the future resale value of his land for an annual property tax payment to the County of just $130 (1% of the $13,000 FMV).
- In the 1960’s and 1970’s, The Irvine Company accumulated property for what they hoped would be an eventual extension of University Drive, connecting Costa Mesa to Irvine along the northern edge of Upper Newport Bay (also known as “the Back Bay”). See The Irvine Company’s land use plan from 1961. The properties acquired for that purpose are represented by the green swath in the County’s aerial map shown above.
- Among the properties acquired by The Irvine Company was a portion of what they had previous sold to become the privately-owned lot at 2600 Mesa Drive. The southern portion containing the fence in question was evidently deeded back to TIC in late 1970. Parts of the fence may have been erected before The Irvine Company’s purchase, and they may have allowed it to stand after that.
- The current owner of 2600 Mesa Drive is believed to have purchased that property in 1977, and may have thought it extended to the fence line, even though most of it did not (see the more detailed chronology. for recent additions to the fencing).
- As a result of public protest and environmental issues, plans for the University Drive extension were eventually dropped. And as a result of litigation and as mitigation for development elsewhere, in 1989, The Irvine Company offered to donate the green swath, and more, to the County as dedicated passive public park land.
- In 1990, the Board of Supervisors accepted the offer and it became part of the Upper Newport Bay Nature Preserve.
- In 2003, the Board offered the Nature Preserve to the state as public trust land, and the state accepted it in 2004 (see Item 24 from the April 5, 2004, meeting of the State Lands Commission and Section 5 of AB-435).
- Despite its becoming public park land, and later public trust land, the original fence has continued to stand on it, and, indeed, been expanded.
- The following visualization prepared with Google Earth, using imagery likely taken in 2018 (before the City of Newport Beach, in cooperation with the neighboring homeowners, built a detention basin to alleviate storm water erosion problems), shows the public land boundary and how the triangle of fenced-in property intrudes into it (note, however, that a small piece of the fence at the top could be moved to the left, over a part of the dirt trail):
- Google Street Views allows an exploration of the area’s appearance and the fencing that existed in October 2016, prior the City’s construction of the detention basin:
- The present-day photo below (taken from the top of the detention basin) shows the location of the Nature Preserve boundary line as currently seen from ground level. The wood fence in the right foreground runs along the Nature Preserve boundary line and marks the edge of the 0.36-acre similarly land-locked parcel owned by a different Mesa Drive homeowner and valued by the County at over $1 million. The chain-link fence in the far distance is old; but much of that in foreground was added quite recently (part of it since completion of the basin and the City’s filling in of the ravine).
- It is also troubling that the official Park Map of the Upper Newport Bay Nature Preserve provided by the County to visitors uses the fence as the Preserve’s boundary at this point, making it appear the publicly-owned natural open space pinches down to almost nothing in the vicinity of the detention basin, and that what is north of the fence is private land, not part of the Preserve:
This is not the true boundary of the County-owned lands in the Nature Preserve as shown in green on this OC Public Works Department image from their land records interactive mapping page, which corroborates the green swath shown in the aerial map OC Parks has presented to the OC Parks Commission and the Board of Supervisors (see Project Overview, above):
The correct, and hard-won, boundary needs to be preserved:
we need to Preserve the Preserve!
- For a more complete chronology, with additional commentary, click here.
- September 13, 2022: County staff was expected to seek direction from the Board of Supervisors as to how to respond to the California Coastal Commission’s August 17, 2022, Notice of Violation that supported the Grand Jury’s conclusions and requested removal of the unpermitted fence from public land (see video of conclusion of Item S37J from the August 23, 2022, BOS meeting). County staff’s recommended plan of action will apparently be discussed in closed session as Item SCS3 on the Board’s September 13, 2022, supplemental agenda, where it is listed only as “CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – SIGNIFICANT EXPOSURE TO LITIGATION.”
- January 7, 2021: On its monthly agenda, the OC Parks Commission was informed of the proposed sale of a portion of APN 439-051-14 and was asked to make a recommendation about to the Board of Supervisors. The meeting was held by Zoom. No members of the public asked to speak on the matter. In making their decision, the commissioners were not shown, and did not ask to see, any images of the property in question other than the aerial map. The Commission was told by County staff that the adjacent homeowner had previously owned the land in question and was simply reclaiming it from the County. They were also told the Newport Bay Conservancy “supports” the transaction. Neither is correct. The Commission’s final 3:2 vote in favor of the sale was eventually deemed insufficient to make a positive recommendation to the Board of Supervisors. See staff report (see page 12) and video.
- January 26, 2021: California law has, since 1959, set a high bar against the sale of dedicated county park land. Among other things, it requires any notice of intention to abandon dedicated park land to be approved by unanimous consent of the Supervisors.
- Despite this, with only four supervisors in office, and no representation from District 2 (in which the property is located), nor a recommendation to proceed from their Parks Commission, the Board adopted, without comment, a resolution of intention to abandon as “unnecessary for park or other county purposes” the 0.32 acres of its Nature Preserve. See agenda packet and video of vote. Chair Do made the motion “on behalf of District 2.”
- The final vote on the sale was to be taken on April 13.
- April 13, 2021: The final vote on the sale, which the staff report said would have to be unanimous, was continued to May 11, apparently at the request of newly-elected District 2 Supervisor Katrina Foley. See as Item 45 on the agenda.
- May 7, 2021: A newsletter from Supervisor Foley says that in response to receipt of more than 790 petitions protesting the sale, she has asked staff to remove the item from the agenda and OC Parks will work to “revoke” the private fencing on public land.
- May 11, 2021 (vote canceled): Having adopted a “Resolution of Intention,” the final vote to abandon the 0.32 acres of park land and direct County staff to complete its sale to the abutting homeowner had been announced as Item 46 on the Board of Supervisors’ agenda,
- However, under California’s County Park Abandonment Law of 1959, the supervisors must drop the matter or put the sale to a countywide public vote if they receive a petition objecting to the sale signed by 200 or more registered county voters.
- Likely 1,000 or more petitions have been presented to the Board’s Clerk.
- County staff decided to remove the item from the agenda without action, effectively ending the abandonment effort. See May 6 Deletion Memo.
- July 8, 2021: Having apparently been told to move his fence back to his property line, Mr. Johns, through an attorney, sent a letter to the Board of Supervisors threatening a lawsuit and hefty attorney’s fees if the County attempted to proceed with this, as well as a claim for compensation for the public’s use of a dirt trail on another part of his property.
- July 13, 2021: The Board of Supervisors may have met in closed session to discussion Mr. Johns’ attorney’s threat of litigation.
- July 14, 2021: County of Orange Chief Real Estate Officer Thomas Miller sends Mr. Johns a letter assuring Mr. Johns that the Supervisors have directed County staff to take no action with regard to the fence.
- July 28, 2021: Two Newport Beach residents (Susan Skinner and James Mosher) serve a “cure or correct” demand on the Board of Supervisors, asking them to void any action taken at the improperly noticed July 13 meeting.
- September 13, 2021: Receiving no reply from the County, the residents file an action in OC Superior Court requesting a writ of mandate directing the Board of Supervisors to cure or correct any action taken on July 13 in violation of the Brown Act (Susan Skinner vs Orange County Board of Supervisors, Case No. 30-2021-01220379-CU-WM-CJC).
- June 9, 2022: The 2021-2022 Orange County Grand Jury issues a report, County Land Transactions: Will the Public Notice?, criticizing the attempted land sale and requiring a response from the County.
- August 9, 2022: As Item 28 on its regular agenda, the Board of Supervisors is scheduled to approve a response to the Grand Jury report. The proposed response says no errors of any kind were made and the County has no intention of removing the fence, as it would be “unwarranted” and “unreasonable.” But the item is deleted to allow staff more time to consider the response.
- August 17, 2022: California Coastal Commission staff sends a Notice of Violation to OC County Parks Director Tom Starnes regarding the fence.
- August 23, 2022: As Item S37J on its Supplemental Agenda, the Board of Supervisors is set to approve a slightly modified response to the Grand Jury report. The only change from August 9 seems to have been deletion of an assertion that the posting of the site had been adequate because the public sent in petitions protesting the sale (the petitions were, in fact, prompted not by the onsite notices, but by the newly-elected Supervisor questioning the April 13, 2021, agenda item to complete the sale). It continues to say the County will not remove the fence.
- Despite dozens of letters protesting the response, it was approved as presented on a 4:1 vote with Supervisor Katrina Foley dissenting. The decision was prompted, in part, by a false claim that it was too late to request an extension of time to submit the response.
- County staff was, however, directed to report back for direction on a plan to respond to the Coastal Commission notice of violation (see video of conclusion of Item S37J discussion).
- September 9, 2022: The California State Lands Commission sent a letter to the County Parks Director informing him that it is a violation of the public trust to allow a private fence on public trust land, and he fence must be removed.
- Voice of OC, April 28, 2021: Newport Political Donor’s $13K Bid for Back Bay Park Land Stokes Opposition, Debate Over Who Gets Priority for Public Land in OC
- Stu News Newport, May 4, 2021: Fair Game by Tom Johnson: It seems that concern about some “abandoned parkland” may be misplaced
(note: this Stu News editorial, presented from the adjoining homeowner’s perspective, repeats the questionable account of what is now park land having been taken from a previous owner by eminent domain (government seizure). 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. That narrative, confirmed by The Irvine Company chronology in the real estate appraisal commissioned by Mr. Johns and reviewed by the County, hardly sounds like government “taking” through eminent domain. Instead, it sounds like The Irvine Company repurchased a piece of a property they had previously sold after realizing that piece of the property was in the way of their vision for a possible new roadway across the land. However it was acquired (whether by the government or a private party), someone paid the previous owner for the eventual park land parcel and the value received was probably a lot more than $13,000 in present-day dollars. According to The Irvine Company chronology, the property was in fact deeded back to TIC in exchange for TIC’s relinquishment of 30-foot wide roadway easements they had retained on the remaining sides of the property.)
- Voice of OC, May 10, 2021: Newport Beach Residents Stop $13K County Sale of Back Bay Park Land to Wealthy GOP Donor
- Stu News Newport, July 16, 2021: Back Bay property owner to county: “cease” efforts to remove fence; county not “taking any action” on land or fence
- Voice of OC, July 19, 2021: OC Officials Back Off on Reclaiming Public Back Bay Land from Newport Political Donor
- Voice of OC, July 31, 2021: Will A Contested Slice of Newport Back Bay Stay in Public Hands?
- Voice of OC, July 31, 2021: Collective Fight Could Expand OC’s Open Space Landscape
- Voice of OC, June 23, 2022: Attempted Back Bay Land Sale, and Emails Between County and Wealthy Donor, Come Under the Microscope
- Voice of OC, August 29, 2022: CA Coastal Commission Calls on OC to Take Down Private Fence on Controversial Back Bay Parkland
- Daily Pilot, September 8, 2022: Protestors gather in the Back Bay, calling for the removal of fence around county parkland
- Voice of OC, September 13, 2022: Another CA Agency Takes Aim at Private Fence in Newport Back Bay As Protest Springs Up
- Los Angeles Times, September 13, 2022: A wealthy O.C. insider fenced off public land in Newport Beach’s back bay, sparking battle
- Voice of OC, September 14, 2022: Wealthy OC Political Donor Announces Legal Action Over Newport Back Bay Parkland Dispute
- Daily Pilot, September 16, 2022: Lawsuit announced over disputed property in Newport Beach’s Back Bay
- Orange County Register, September 18, 2022: Dispute erupts over homeowner’s fence sealing off public land above Newport’s Back Bay