Just short of the opening of trial on a property encroachment case brought against it by Michael and Kim Denton, the city of Chino Hills has settled its dispute with the couple by agreeing to allow them to purchase 1,574 square feet of municipal-owned open space they have been occupying since they purchased their home on Hunter’s Gate Circle 14 years ago.
The Dentons are just one set of  hundreds of homeowners  – the city has quantified the number at 238 – who the city has accused of  building on, or placing improvements in various forms onto, property beyond their respective lot lines, including landscaping, walls, saunas, pools, gazebos and swing sets.
In the case of the Dentons, that matter was forced to a point of crisis when the couple, who purchased their home in 1999 from Gloria Vitagliano, were informed by the city in 2010 that the furthest extension of their backyard was encroaching on city-owned open space and that they had to remove their pool and spa along with a wrought iron fence,  irrigation and palm trees that Vitigliano had installed and planted in 1995.
The Dentons offered the city $10,000 for the property, but the city rejected that offer, instead saying it would provide them with a 15-year easement for the continued use of the property.  The Dentons then retained the firm of Gresham, Savage, Nolan and Tilden and in 2011 sued the city.
The Dentons claim the city allowed the Vitagliano/Denton encroachment, which was conspicuous and open, to stand, and did nothing to interfere with Ms. Vitagliano’s or their occupation of the approximately 1,574 square feet of land for more than 15 years. Nor did the city act in a timely manner to prevent them from removing the wrought-iron fence and replacing it with a glass wall and block fence, the Dentons asserted.
After attempts by the city to have the case dismissed outright, assistant city attorney Elizabeth Calciano made a motion to strike portions of the complaint. On March 11, Superior Court Judge Joseph Brisco ruled the case would go to trial September 30 with all of its causes of action intact. Last month, the Dentons made a motion for summary judgment, but Brisco rejected that, ruling that triable issues of material fact exist with respect to the correct zoning of the property, whether Vitagliano and by extension the Dentons violated local ordinances and zoning laws which resulted in a failure to comply with the covenants, codes and restrictions on the property, whether the Dentons could have obtained  what they sought through a lot line adjustment and whether certain previous statements made by either the city or the Dentons contradict the positions they took in regard to the lawsuit.
While the Dentons’ lawyer, Theodore Stream, maintained his clients had no knowledge of the encroachment, which the city was obliged to redress in a timely manner, the city maintained that a document recorded at the time of the sale to them by Vitigliano contains a disclosure stating there is a “possible discrepancy regarding lot size/fence line.” The city maintained that this demonstrated the Dentons were on notice as to the possible encroachment at the time of the sale.
A settlement reached by the Dentons and the city on September 10 during a mediation conference conducted by retired Judge John W. Kennedy renders the lawsuit moot. According to city attorney Mark Hensley, the city council in closed session that evening moved rapidly to accept the terms of the settlement, which involved the city consenting to a “quitclaim” of the 1,574 square feet of land for the agreed-upon price of $11,000 and the Dentons’ willingness to pay escrow and document fees, together with their own legal costs in pursuing the lawsuit. The Dentons’ title insurance company, First American Title of Orange County, will cover the $11,000 purchase cost, escrow and document fees as well as Gresham, Savage, Nolan and Tilden’s legal fees.   The city was given, under the terms of the settlement, 120 days to process land use entitlements, a lot line adjustment, and environmental documents.
The settlement with the Dentons came less than three weeks before the case was to go to trial and while the city is making a renewed effort to forge a “global” solution to the widespread encroachment issue, having floated the viability of agreeing to sell most of the disputed encroached-upon properties to homeowners citywide. On July 9, the city council discussed just such an approach.
In 2010, the city had undertaken to inform encroaching property owners about the issue. The Dentons were among those so informed and that effort triggered the pending lawsuit.  The city’s approach in resolving the issue at that time was hampered by the suggestion that encroaching property owners would be “fined” as a consequence of their occupation of property to which they did not have title.  A far more comprehensive notification effort was made this summer, with the owners of 238 properties identified as encroaching onto city-owned open space having been given notices to that effect. Those notices, sent from the city’s code enforcement division, went out to the offending property owners on July 31. Those notices informed the residents of the city’s contemplated open space sales program.
A major issue is the price residents would be willing to pay and the amount the city is willing to accept for the property in question.
According to a city staff report, there is interest on the part of some of the encroaching residents to cure the dispute, including making those land purchases. Others told by the city that they have encroached on city property have taken the position that they are not occupying public open space at all. Some of the homeowners receiving notices were unaware of the issue. Others had been previously notified. Still others who had not been previously notified were cognizant that the issue existed but have been noncommittal in their response.
Tentatively, the city has indicated it envisions being paid $6 to $17 per square foot to relinquish title to the encroached upon open space.
In the case of the Dentons, they paid $6.99 per square foot to obtain title to the property, not including escrow and document fees.
Of those the city maintains have encroached, some simply inherited the encroachment from previous owners. In some cases, the encroachments preexisted the city’s incorporation in 1991. In some cases, the owners themselves expanded their property lines or put in landscaping onto property the city claims is public open space.
The city has indicated it does not want to assess blame or fault with regard to the encroachments but wants simply to move ahead with solving the issue by means of a formalized sale of the encroached-upon property in question to those willing to make the purchases.
City council members expressed confidence that the agreement with the Dentons will provide a model for negotiated settlements with most, if not all, of the other 237 homeowners deemed to be occupying city-owned open space. Over the last two-and-a-half years, the city accrued legal bills of $263,000 in response to the Dentons’ suit.
A decade ago, Chino Hills had a surplus open space sales policy, but ended that program in 2005.