After rejecting a Bakersfield couple’s application to build a home on 37 acres at Cave Landing near Avila Beach, the state Coastal Commission is now considering whether to open up a popular hiking trail on the couple’s land to the public.
The trail leads from the parking lot at Pirate’s Cove, up a steep hillside to Ontario Ridge and then east along Ontario Ridge toward a cellphone tower.
The agency will use what is known as the prescriptive rights process. If it can prove that enough uncontested public use of the trail has taken place over the years, it can ask to have a judge formally declare it open to the public.
“It is information gathering,” said Linda Locklin with the commission’s Coastal Access Program in Santa Cruz.
“There’s been a lot of activity around there, so it looked like a good time to put this effort out.”
Once the commission staffers have finished gathering public statements, they will decide whether there is sufficient evidence to pursue a prescriptive rights case. If so, the case will be turned over to state Attorney General Kamala Harris for action.
If Harris decides to act, her office would file a lawsuit against the property owners to protect public use of the trail, Locklin said. If successful, a public prescriptive easement would be put on the property.
The property is owned by Rob and Judi McCarthy of Bakersfield, who applied to build a home there.
The Coastal Commission denied their permit at a hearing in January in Pismo Beach.
The couple could still build a home on the property if a prescriptive easement is put on the trail. But they would legally be required to allow hikers across their land.
The McCarthys were not available for comment for this story. Rob McCarthy is the founder of Lightspeed Systems, an educational software firm. His wife has served on the Kern Community Foundation, a philanthropic organization.
As part of their application to build the home, the McCarthys offered to dedicate an easement on the Ontario Ridge trail. However, they want the part of the trail up the hillside to be closed as a safety precaution because it is so steep, said Dave Watson, a planning consultant who represents the McCarthys.
The family has also offered to help design an alternate trail on adjacent county property. They have filed a lawsuit against the commission in an effort to force the agency back to the negotiating table.
“Viable alternatives exist,” Watson said. “The McCarthys are willing to provide access if the commission is willing to negotiate.”
Watson also said the family will apply anew to build a house on the site if the lawsuit fails. “They’re not going to give up,” he said.
Prescriptive rights are a tool commonly used to maximize coastal access, Locklin said. Typically, her office has three or four prescriptive rights cases going at any one time.
In order for a trail or other coastal access to have a prescriptive easement placed on it, continuous use for at least five years needs to be proved. In 2009, a group of activists successfully used the prescriptive rights process to reopen a beach access pathway in Shell Beach.
Property owners can limit the use of prescriptive rights by placing signs on their property saying that the right to pass is by permission and subject to control of the owner. Public use during periods of time that those signs are posted cannot be used for a prescriptive rights case. However, no such signs have been placed on the McCarthy property, Locklin said.
The county recently accepted the popular Pirate’s Cove Beach and surrounding property into its park system. Numerous improvements are planned for the park which should increase public use in the area where the trail is located.
Hikers asked to document trail use
State Coastal Commission staff is asking that people who use the Ontario Ridge trail fill out a questionnaire documenting their use and send it into the commission. The commission will accept such documentation for the next three or four months, said Linda Locklin with the commission’s Coastal Access Program in Santa Cruz.
Forms to document use can be found on the commission’s website at www.coastal.ca.gov/access/prc-access.html.