(November 6) The city of Chino Hills has determined that there are fewer homeowners encroaching on city-owned open space than was previously believed to be the case.
Nearly three years ago, Chino Hills city officials began a somewhat haphazard notification process related to what they believed were as many as 300 instances of  property owners in the city who had encroached on public open space. Those encroachments include trees, shrubs and other forms of landscaping in city-claimed open space in the most benign of the cases and consist of fences, walls, pavement, swimming pools, hot tubs and  structures in more serious situations.  Some of those improvements were undertaken by the present owners of the properties. In others, they were completed by previous owners.
In one of those cases, Michael and Kimberly Denton sued the city in 2011 after the city’s code enforcement division informed them 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 landscaping that was already extant when they purchased their home on Hunter’s Gate Circle in 1999 from Gloria Vitagliano.
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 to sue the city.
The Dentons claimed 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 land for more than 15 years. Just prior to the case going to trial in September the city of Chino Hills consented 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, has covered the $11,000 purchase cost, escrow and document fees as well as Gresham, Savage, Nolan and Tilden’s legal fees. The city avoided the cost and risk of a trial. Nevertheless, it had accrued legal bills of $263,000 in response to the Dentons’ suit.
Earlier this year, as the Dentons’ suit appeared to be headed to trial, city officials considered defusing the encroachment issue altogether by offering  to sell the strips of property in question to those residents. In July, the city said it had undertaken a review indicating 238 residential properties within the city were encroaching upon city-owned open space. It sent out notices to those landowners, inviting them to attend workshops relating to the issue and dialogue with the city with regard to solutions. The city initially indicated it would impose fines or penalties on the encroachers and subsequently suggested that most of the encroachment issues could be readily resolved by the landowners involved paying somewhere between $6 to $17 per square foot to obtain title to the encroached upon open space.
Last week city officials said further research has led to the conclusion that there are not 238 encroached-upon strips of city-owned open space but 187. As a consequence of contact with residents both at city-sponsored workshops and in more direct exchanges, the city has directed staff to facilitate the purchases in those cases deemed appropriate and to go so far as to provide residents who cannot afford to secure financing at the time of sale so-called “due-on-transfer” clauses, and to rezone and remove the restrictions on any property transferred to the residents.
The city council also directed that staff not play hardball with regard to the selling price on the strips of land to be sold to the encroachers, such that the selling price should reflect the cost of the property at the time the residents purchased their property rather than the current higher fair market value. The council also said the city should facilitate the sale of not just “open space” that was encroached upon but be cooperative in allowing residents to purchase any park land inadvertently encroached upon by residential homeowners.  The council has also been persuaded to drop the “penalty” or “fining” provision of its earlier approach.
The council was insistent, however, that those residents participating in the purchase solution bear all title costs pertaining to the sales as well as any environmental review costs required under the California Environmental Quality Act.  Purchasers will need to make a 120-day notice of their intent to purchase, according to the guidelines suggested by the council.
In those cases where the encroachments entail health or safety hazards, the city council is opposed to allowing purchase of the land to go forward and will instead require that any improvements, landscaping or structures on the encroached-upon property be removed at the expense of the property owner in question.
Rossana Mitchell, a former city councilwoman who is also an attorney, said it is too early for the city to be discussing purchasing arrangements or pricing on the properties.  She noted that in recent weeks the city has acknowledged that of 238 cases of encroachment it earlier identified, at least 51 of those have been determined not to have entailed unauthorized property occupations after the lot lines were examined.
“My concern is the city hasn’t done a formal land survey on those properties,” Mitchell said. “It is premature to declare them as encroaching and make demands. Aerial photographs are not sufficient. The city needs to do its homework and a lot more information needs to be produced. They need to properly survey the property to determine if they are in fact encroaching on city property before making a valid claim to end the encroachments.”
Mitchell said undertaking such surveys would simply be “the first phase. The first question should be ‘Are they encroaching.’ The next thing would be to determine it it was done in good faith or bad faith. If it is a matter where a property owner clearly knew where the property line was and encroached, that issue has to be addressed and the city needs to enforce whatever codes it has to undo that violation. But at this time it seems that most of these cases were done in good faith where the owners had no idea that they were encroaching for the past twenty or thirty years. I think we have to look at each case individually.”
She reiterated that she believed the city was getting ahead of itself by calling for residents to purchase the property in question, in particular given the length of time that has passed while those property strips have been occupied by and improved by the city’s homeowners and the lack of hard data and documentation now at the city’s disposal.
“The city said there were 238 of these,” she said. “They are now down to 187, once they looked into it. I think it would have been wise for them to have looked into it and made sure they had valid encroachment claims before they sent out those notices and made claims that  upset people.”
In the lion’s share of the cases, Mitchell said, even if some encroachment occurred, “I think the city should grandfather their property [i.e., quitclaim title to the residential property owners]. If any buy-outs need to be made, it should be minimal. I don’t think the residents should have to pay for any of the processing or California Environmental Quality Act-required studies. The city either did not know about this or has neglected it for over twenty years. If the city did not know and the landowners did not know, they should not be subject to penalties after all this time.”