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Newport Beach

Volume 6, Issue 61  | July 30, 2021

Letters to the Editor

County urged to deny “bullying actions” issued by Buck Johns’ attorney

The following is a letter sent to the Orange County Board of Supervisors and specifically naming Chairman Andrew Do, and copied to Stu News Newport. 

You received a July 8 letter from Mr. (Patrick) Munoz of the law firm Rutan and Tucker regarding the efforts of Mr. (Buck) Johns to maintain control of a parcel identified as APN 439-051-14 (letter attached). This letter is rife with factual errors, which I address below. I would like to point out that your constituents have spoken that they wish this property to be accessible park land.

Mr. Johns attempted to purchase this property for $13K despite the fact that an identical adjacent parcel is assessed by the county for $1.18 million. This proposed sale resulted in 1,321 petitions opposed to this purchase being submitted to the board, causing the county to rescind the sale. Now Mr. Johns is seeking to obtain exclusive use of public property by threatening a lawsuit against the county if they remove the fence that he has illegally put around the property.

Mr. Munoz’s letter claims that “until recently, Mr. Johns and the County believed that the subject property belonged to the Johns.” This is demonstrably false. Attachment 1 is the Trust Transfer Deed for Mr. Johns’ property, dated 8-13-07, which specifically calls out the parcel in question as NOT being owned by Mr. Johns. Attachment 2 is a 4-30-19 email from the Irvine Company that was a part of the appraisal commissioned by Mr. Johns and which thanks Mr. Johns for his information that the property was purchased from the previous owner and its subsequent history. Attachment 3 is a 7-17-17 Right of Entry Agreement signed by Mr. Johns and containing a map that clearly delineates the subject property as belonging to the county. Finally, the County Assessor’s office does not collect taxes on that parcel and so clearly knew that it was not in private hands.

Mr. Munoz’s letter states that the current fence on the property was present before Mr. Johns purchased it in 1977. This is partially correct. There was a fence on the property when it was purchased but when the Bayview Heights Drainage Project was completed, Mr. Johns arranged for the fence to be partially replaced, although he was well aware that the property was not his. Much of the fence that is currently enclosing the property is new.

Mr. Munoz states that “the County has made it crystal clear through its actions over the years that its only intended use for the Subject Property was for roadway purposes.” This is also demonstrably false since the Irvine Company made an “irrevocable dedication” of the land to be park land on 7-30-90 (attachment 4). The County’s own staff report (attachment 5) states: 

“This parcel was originally owned by The Irvine Company (TIC) and included in the County of Orange’s (County) Master Plan of Arterial Highways (MPAH) as part of an extension of University Drive between Irvine Boulevard [Avenue] and Jamboree Road. After the University Drive extension was no longer considered viable, the subject parcel, along with adjoining strips from University Drive to Jamboree Road, was offered by TIC as an Irrevocable Offer of Dedication (IOD) to the County, on July 24, 1989, with a restriction for passive recreation uses only. The County accepted the IOD on July 27, 1990, recorded as Document 90-395-556. In 1990 the extension of University Drive was also removed from the County’s MPAH.”

Mr. Munoz quotes the equitable easement doctrine, but it is not at all applicable in this situation. Mr. Munoz states that the Johns[es] deserve an equitable easement because they paid part of the cost of the sediment catchment basin, but this was done because water runoff was progressively eroding their actual property. The sediment basin is not even on the property under discussion, which completely vacates any premise for an equitable easement at all.

Mr. Munoz cites Hirshfield v Schwartz as the basis by which the county may grant an easement, stating that “in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” The quote is correct but incomplete. Hirshfield v Schwartz also notes that an “easement which effectively amounts to ownership could not be awarded…where the encroaching landowner was unable to meet the requirements for outright adverse possession.” The court goes on to discuss the test used to decide whether to enjoin a trespass caused by an encroachment. 

“Three factors must be present. First, the defendant must be innocent. That is, his or her encroachment must not be willful or negligent. Second, unless the rights of the public will be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury…regardless of the injury to the defendant.’ Third, the hardship to the defendant from granting the injunction ‘must be greatly disproportionate to the hardship caused the plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.’”

Mr. Johns does not meet ANY of these criteria and thus, based on established case law, an easement cannot be granted to Mr. Johns. The record shows that Mr. Johns knew that the old fence was not on his property when it was partially replaced and thus the replacement of the fence was clearly willful.  The harm to the public from the loss of access to public parkland precludes Mr. Johns from receiving an easement. The hardship to Mr. Johns from the removal of the fence is minimal. No court who follows precedent will grant Mr. Johns’ request, making Mr. Munoz’s demand moot and his arguments legally ridiculous.

As I previously stated, your constituents have spoken and wish to retain the park for their use. Please do not allow the bullying actions of Mr. Johns to deny them this request. I will also add that this entire episode reeks of special privilege and I would appreciate having the opportunity to discuss my concerns of political corruption with Mr. Kim and Mr. Page, who are cc’ed on this letter.

Thank you,

Susan Skinner MD

Newport Beach

Response to McCaffrey opposition messaging for Balboa Island undergrounding

Former City Councilmember and Balboa Island resident Jeff Herdman took exception with Duncan Forgey’s column concerning Balboa Island undergrounding that stated, “This is the third attempt by the City off Newport Beach to standardize Balboa Island on this issue.”  

He added, “I am really sick and tired of misinformation and outright inaccurate statements being made on this topic, and it contributes to the possible defeat of this project.”

One of the biggest opponents of undergrounding on the Island is Bob McCaffery. Herdman sent the following response to McCaffery’s opposition messaging that recently circulated on the Island.

The price per parcel for undergrounding in 2009 was rejected by voters due to the myriad of misinformation spread about the project by the opposition (McCaffrey). He fails to mention that passage failed by just two votes. 

The cost of the Balboa Island project is greater than recent AD projects (2015-2018) in the City simply because of the scope and size of the project.  Comparing the cost of the BI project to that of recent projects throughout the City is akin to comparing apples to oranges. The BI project would be the largest residential project to date completed by the City and Edison within the City of Newport Beach.     

City staff have ensured that property owners within the BI Assessment District are not being “gouged” by assuming responsibility for the civil engineering and construction phase of the project. With this phase of the project being completed by the City, a 40 percent savings to each property owner (a savings actually documented by SCE) will be realized. 

McCaffrey references Jamshed Dastur’s decades of experience and professional experience managing heavy/civil/marine construction projects as a reason for justifying that the cost of the project should be under $25,000 per parcel. It is interesting to note that Jamshed served on the Balboa Island Undergrounding Committee for several years and was one of the key individuals who encouraged the formation of the committee, as well as the initiative it took to keep the committee working when faced with so many defeats with SCE. He now opposes the project because of a quoted cost that is $4,000 more than what was quoted in 2009? That was 11 years ago.

In a conversation I had with City Engineer Mike Sinacori (who will, by the way, be in charge of this project), he frankly admitted to me that if the project fails to garner the necessary votes, it will make his life a whole lot easier. So, McCaffrey’s accusation that the process has been rigged by the City and the BIIA is absolutely ludicrous. This is not a surreptitious BIIA-sponsored initiative. The BI Underground Committee is completely independent of the BIIA and always has been. Not one single penny has been spent from the BIIA treasury in preparing for or forming the underground assessment district. The BIIA Board has voted to support this project under the auspices of an “improvement” which is what the Association has been all about since its formation in the early 1900s.  While membership in the BIIA does include renters, merchants, local businesses and non-residents, as McCaffrey states, none of these individuals have the opportunity to cast a vote on a ballot for undergrounding. In fact, membership in the BIIA has absolutely nothing to do with undergrounding. McCaffrey certainly implies that it does, and that non-property owners are being given the opportunity to vote. The City mailed a ballot to each property owner on record by the County Tax Collector as of 2020. No other individuals have or will be given the opportunity to vote. 

The City Council meeting where the ballot count will be announced will follow the normal meeting notification procedures. Meetings are held on the second and fourth Tuesday of each month excluding August when only one meeting is held. At this regularly scheduled meeting, the City Clerk, who is in complete control of the ballot counting procedure, will announce the results. The process for counting votes and announcing the results is defined and by law.  The counting process is completed by an independent engineering company who designates four individuals to complete the counting process. They are actually deputized by our City Clerk to complete this work. Their job is to count, and nothing else. They have no vested interest at all in whether or not the district approves or disapproves the formation of an assessment district. The engineering company does not stand to gain financially in any way. What McCaffrey states about the engineering company making $135,000 if they find the petition to be in order – a clear conflict of interest – is simply not true. And again, we are talking about balloting here, not petitioning. This is the type of information that McCaffrey spreads that is not true and does a great deal of harm to the entire process. Why would the City knowingly place themselves in a position of being in conflict with the engineering company they contract with to count the votes as McCaffrey states? It makes no sense.

–McCaffrey is correct when he states that the petition process has no set deadline, however, and by law, the City has set the date of July 27th as the deadline for turning in your ballot. There is a difference between the petition and ballot. The petition is used to determine whether or not a ballot should be issued to form as assessment district. That was accomplished; we are now in the balloting phase of the formation of an assessment district. McCaffrey would have you thinking that the petition process could go on forever, or until the 60 percent goal is reached. That goal was reached; thus the reason for distributing ballots.  And it is, by law, impossible for an assessment district to be formed for the purpose of undergrounding if the required percent of property owners affected have not voted in favor. McCaffrey states that “most Assessment Districts in the recent past have passed with far less than the 50 percent of the properties approving.” This simply is not true. It would be against the law to do so.    

As far as the “symbiotic” relationship that exists between the City and the BIIA…this good working relationship has been developed over a number of years (100+) to the benefit of all of us who enjoy the privilege of living on Balboa Island.  As far as the BIIA being the “official” organization that the City recognizes as the representative voice of the Island population, it has been so since the formation of the BIIA in the early 1900s (when the Island was first formed). It was as a result of Island representatives (the BIIA) working with City staff that infrastructure installation (roads, utilities, sidewalks, street lights, seawall, boardwalk) was accomplished over the early life of the Island. To diminish the role that the BIIA has played in representing Island property owners in the early years of the Island to the present is completely unjustified or warranted. The BIIA enjoys and appreciates a membership that often times reaches over a thousand families on an annual basis (not 400 as stated by McCaffrey). 

“Those in opposition to the formation of an assessment district are not given the opportunity to verify the signature on each ballot” because this is done by the duly deputized ballot counters under penalty of prosecution. The announcement of the ballot count results is done at a regularly scheduled and publicized meeting of the Newport Beach City Council. Nothing is done in secret as McCaffrey implies. The scenario that McCaffrey details in relation to ballot counting is once again intermingled with petition signing and does nothing but confuse the reader. Again, petition signing, and balloting are two completely different steps in this process. 

McCaffrey refers to the City as an “avid advocate for undergrounding. ”I refer you back to my conversation with City Engineer Mike Sinacori when he stated to me that he absolutely does not care if it passes or fails. That, in fact if it fails, it means much less work for he and his staff. The above statement is simply another untruth provided by McCaffrey. 

–Safety, reliability, aesthetics, resale value, financing – all of these factors have been very well evaluated and studied by the Underground Committee. One of the main drivers behind the underground project has indeed been safety. It was clear that some of our alleys would not allow for the passage of emergency vehicles with the replacement of existing poles for a new above ground overhead system. Our police and fire departments have verified this as a fact. As far as reliability is concerned, proof can be found right next door to us on the Little Island where power outages over the past twenty years on that Island versus the Big Island don’t even compare. And as far as water leakage is concerned, there has never been a power outage on the Little Island due to water leaking into the underground vaults. Aesthetics and resale value are an obvious benefit of this project. Who can honestly find fault with the removal of power poles, transformers and power lines, and the resultant rise in the value of your property? 

The signers of the Opposition Message – Robert McCaffrey, Jim Moloney, Jamshed Dastur, Brian Ouzounian, Michael Smith – are once again attempting to influence the vote on forming an underground assessment district through the intentional spread of misinformation, and in some instances, outright lies. Why would they do this you ask? Go directly to the source and ask one of them but be prepared for a response that will be twisted to accomplish their ends. 

If you have not yet turned in your ballot either by mail or dropping it off at City Hall, I have been advised to tell you that the closing date for the receipt of ballots is just around the corner. You are being asked to not mail your ballot at this late date; rather to hand deliver it to City Hall. 

Jeff Herdman, District 5 

Newport Beach City Councilman, 2016-2020

Balboa Island

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