A
judge has ordered a San Rafael woman to remove a portion of her yard
that encroaches on city open space within 30 days and pay a $30,000
penalty.
Judge Roy Chernus' decision, issued Monday, is the latest
development in the years-long dispute over an illegal backyard at 81
McNear Drive in East San Rafael. In 2006, Marion Hill and her family
bought the 9,803-square-foot house for $4.2 million.
"While it is
clear to the court that Ms. Hill purchased the property with the
encroachment in place, it is also clear that she has chosen to maintain
the encroachment long after it became clear that the City would not
agree to allow her to do so," Chernus wrote in his decision.
Chernus ordered Hill to return about
a half-acre of land to the city and remove a shed "as soon as possible" but no later than 30 days after the judgment.The court's decision comes after a one-day trial on April 17.
San
Rafael initiated the lawsuit after Hill failed to remove the
encroachment after the City Council rejected her application for an
exception in May 2009, City Attorney Rob Epstein said.
Hill has
said she was unaware of the encroachment when she bought the property.
In 2009 Hill told city officials she wanted to work out a land swap, but
neighbors and activists fought against the effort, saying it set a bad
precedent, complicated enjoyment of the public land and raised issues
surrounding wildlife, fire, flood and landslide risk.
Built in
1987,
the property has a history of encroachment dating to 1989, when a lot
line adjustment was required to legalize the house's swimming pool.Sometime
between 1989 and 2000, landscaping, fencing, irrigation, rock walls and
a storage shed appeared in the open space, "all of which encroached
much more significantly," according to the city.
San Rafael
officials first flagged the problem in the backyard in 2000 after a
neighbor complained. The city hired a surveyor, confirmed the
encroachment of about 22,250 square feet of city land and issued an
abatement letter, which went unheeded.
The matter didn't reemerge
until March 2007, when the city received a report of illegal tree
trimming in the open space at 81 McNear Drive and rediscovered the
long-standing violation.
"The Court clearly recognized the
seriousness of the violation when it awarded a substantial penalty
against the defendant because of her private encroachment in the public
open space," Epstein said in an email Tuesday. "Much private property in
San Rafael — including hundreds of residential properties — is adjacent
to our public open space. We will continue to do our best to ensure the
public's access to open space."
Epstein noted that the $30,000 penalty would go to the city's general fund.
Hill
and her attorney, Scott Phillips, couldn't be reached for comment
Tuesday. Hill is involved in a second lawsuit with the home's previous
owners alleging breach of contract. A hearing is scheduled for Wednesday
in that case.