Why you should do your homework before buying property
Posted: 06/12/2012 05:38:27 PM PDT
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
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.
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.