Access dispute gains county’s attention

A dispute over public use of a beach southwest of Guerneville has been playing out for the past year after neighbors near Vacation Beach were fenced out by a property owner. The beach area sits in a quiet corner of the Russian River, about a mile downstream from Johnson’s Beach. Mark and Rita O’Flynn own a beach front home that is listed as a vacation rental at Russian River Getaways. Recently, O’Flynn erected a fence on the back portion of his property, blocking off a section of the beach at the south end.

Neighbors point to public land trust records that they claim prove the public has a right to cross three properties on Graystone Place to access a public area that sits below the Ordinary High Water Mark (OHWM) of the river. A path across the higher portion of the beach is where the fence was put in to block access to the water’s edge. A “No Trespassing” sign is duct taped to a post in the middle of a sandy path that leads to the beach in question.

Neighbors in the Vacation Beach neighborhood have been sending letters and emails to the office of Supervisor Efren Carrillo, stating that a prescriptive easement has been used for decades by the public to access the beach.

Mark O’Flynn, who is a San Francisco Bay Area attorney, told Sonoma West Times and News he does not believe that there is a public easement which allows people to cross his property to access the beach.

“The public does not have the right to trespass over my land,” said O’Flynn, who has owned the property for 13 years.

“In the past year, or two years, there has just been a dramatic increase in what I would call outsiders coming in and using the beach area,” he said.

In a letter to the Board of Directors of the Sweetwater Springs Water District (SSWD), dated Aug. 6, 2014, O’Flynn wrote large groups of more than 30 people overflowed onto his property and trashed the area.

“Their activities include playing loud amplified music, drinking alcohol, urinating and defecating in the bushes or on our lawn, late night campfires and littering our property with bottles, cans, cigarette butts and food packaging.”

O’Flynn also requested in writing that the board post signs on a public easement trail located in the 17400 block of River Lane, where beach goers can access the beach. He requested the signs show rules and regulations developed by the SSWD. O’Flynn has contacted SSWD to address the problem of beach goers having no access to restroom facilities but was unable to resolve the issue.

Neighbors said that O’Flynn’s description in the letter is exaggerated and irrelevant. John Herrald, who lives around the corner from the River Lane entrance, contends that O’Flynn’s claim about beach debris does not matter because it’s not his beach to allow or deny access.

O’Flynn said he does not believe there is a public easement across his property, which runs down to the low water mark of the Russian River. However, he does acknowledge the beach area at the water line is public.

“The public has the right - to beach access up to the Ordinary High Water Mark,” O’Flynn said. “So, people can access the beach below my property up to the Ordinary High Water Mark by approaching it from the river. If someone was to kayak up and wanted to have a picnic lunch, or whatever, there’s no issue with that.”

Sonoma County’s Permit and Resource Management Department (PRMD) was called by neighbors complaining that the wire fence stretching across the beach is not legal. PRMD investigated and agreed, sending Mr. O’Flynn a notice of violation, which meant that the fence needed to be removed.

“Initially, I was told by PRMD that I did not need a permit for the fence,” O’Flynn said. He is appealing the findings, which means that a 30-day period, from the July 17 notice date to comply with the notice, is on hold pending the outcome of a PRMD hearing.

The notice of violation states that the fence “has been erected in the Riparian Corridor and the floodway” in violation of Sonoma County Zoning Codes. Sonoma County PRMD defines a Riparian Corridor as the area that encompasses a river or stream and the land adjacent to it.

Suvervisor James Gore’s office recently investigated a similar case on the Russian River near Healdsburg, finding that the public did have a right to access the beach.

Fourth District Aide Daniel Hunt stated the issue around the fence is questionable.

“From everything I know about that fence, it is absolutely illegal for him to have it up,” Hunt said.

In an email sent to public officials, Hunt provided a section of California state law on public access to beaches along rivers which stated:

“No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”

Neighbors, including Harreld, have submitted pictures of the beach underwater during winter months and are confident that the public access will again be found by any investigation. The California State Lands Commission (CSLC) is currently looking in to the matter and may have the final word on the easement and the OHWM. Sources with the county that did not want to go on the record say that they expect litigation, regardless of the outcome of the CSLC.

The fence has since been partly torn down by an unknown person or persons. In addition to the fence, surveillance cameras are mounted to a tree in O’Flynn’s backyard pointing to the area of the fence.

In planning for the future, O’Flynn is in the process of requesting a permit to maintain a temporary fence.

Vacation Beach neighbors expressed concern that if O’Flynn is able to keep his fence, it will create a precedent for other homeowners in the area. Their fear is that other river front property owners will follow in suit, putting up fences of their own down to the water.

“If everybody did that, the only view of the River would be from a kayak. We can’t just launch at Burkes and land at Johnson’s,” said Tyson McLain, who has lived in the area for 33 years, 13 in Vacation Beach.

PRMD has set a hearing date of Aug. 28 for O’Flynn’s appeal of the violation notice. The hearing can be pushed to Sept 25.

CSLC has no time frame or estimate for how long their investigation may take in determining whether or not O’Flynn’s property does or does not have a public easement and where the Ordinary High Water Mark lies, officially.

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