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When Mark Yandow bought a house on Seacliff Drive in Shell Beach, he probably had no idea he was about to get into a fight. For years the former owners of his property allowed their neighbors, local surfers and everybody else to walk across the land to a bluff overlooking Spyglass Park. In 2004, after purchasing the property, Yandow closed off the path with a fence and his neighbors haven’t taken it lightly.
Tim Page, who organized a group called Save Our Access Path (S.O.A.P), says he frequently used the narrow trail to access the bluff overlooking the ocean. When Yandow closed the walkway, Page helped organize his neighbors, who contributed donations and held garage sales to raise money for a legal battle to reopen the access.
Page and S.O.A.P argue that the path should be open because the public had unimpeded access over the land for so long that they can be legally awarded a prescriptive easement.
According to the California Coastal Commission web site, “Prescriptive rights refer to public rights that are acquired over private lands through use…(A) right of access acquired through use is, essentially, an easement over real property that comes into being without the explicit consent of the owner.�
S.O.A.P provided the Coastal Commission with documentation of public use over the access path, said Nancy Cave of the Coastal Commission. In order for prescriptive rights to exist, Cave said, the general public must have unimpeded access for five years.
“In this instance the public has sent an ample amount of info documenting use over many, many years,� said Cave. “There’s the possibility that this has established a public right to use this path.�
Yandow, whose attorneys did not return phone calls as of press time, is also potentially facing code enforcement violations for erecting the fence without a permit, said Cave.
The Coastal Commission met with Yandow when he first erected the fence. He claimed it was needed during construction to prevent theft. The Coastal Commission is now asking the Attorney General to review the legality of Yandow’s fence as well as S.O.A.P’s request for the prescriptive easement.
“We remain convinced that the fence requires a permit,� said Cave.
S.O.A.P, in an effort to cover all the bases, has also filed a lawsuit against Yandow demanding access. The City of Pismo Beach has remained on the fence, so to speak.
“The city is not responding to the commission’s letters regarding the permits, and frankly I don’t know why,� said Cave.
Officials from Pismo Beach say they’re waiting for a court to rule on the path and fence. “We’re not going to force the property owner to keep (the path) open,� said Carolyn Johnson, Pismo Beach planning manager. “If and when the court decides, then the fence will come down.�
According to Johnson, Yandow has agreed to comply and remove the fence, if the court rules that way.
The Attorney General is currently reviewing the case to decide if a claim should be filed, said Linda Locklin of the Coastal Commission’s Coastal Access Program.
“It’s not often that we actually file a lawsuit because it’s expensive,� said Locklin. “Litigation is a method of last resort.�
The Coastal Commission, s
aid Locklin, now has no other solution.
Staff Writer John Peabody can be reached at jpeabody@newtimesslo.com.
