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02.06.08

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Photograph by Will Mosher
Wall Is Not Well Here: An activist dismantles a wall blocking an informal path used by Mission Hill neighbors.

Block Party

An absentee landlord, irate neighbors, the Catholic Church and a missing fence make for a heated battle over a Santa Cruz alleyway.

By Will Mosher


It was a beautiful Sunday morning in January when the bicycle activists from People Power met with neighbors outside Holy Cross Church. It had rained during the night, and the streets and clay tiles of the historic mission steamed in the sun. The bells of the church had just announced 11 o'clock mass, signaling the activists.Around a fence blocking an alley linking Mission Plaza with the High Street cul-de-sac, a throng gathered to watch. Activists scaled the wall and got to work. Neighbors began cheering as someone pushed the spinning blade of a circular saw through the boards, and soon all heard the hollow boom of hammers on wood, both at the near end of the alleyway and at the far end.

Then it was over, and all that was left of the two fences clung to bolts that had been drilled into the concrete walls and floor of the alley. The crowd followed the activists through the pathway carrying chunks of shattered timber and paused to pry loose one of the boards that was bolted to the ground so a cloudy-haired woman in a wheelchair and her service dog could follow. Then they marched back and forth in order to assert that the pathway was open to the public.

Micah Posner, one of the activists, joked that they had planned to mail the boards to the man who owns the fences and the adjacent lot, but because the man lived in Redway, a tiny town in Northern California, they couldn't afford the postage.

It was over before mass ended, and the group evaporated before two police officers arrived to investigate. By the time they arrived, the fences had been rendered into a neat stack of timber lying next to some garbage cans.

The broad-daylight action was just the latest development in a long fight between John Mahony and his neighbors. It's an ideological battle between public and private rights, and it has turned residents and bicyclists against the landlord who bought the right-of-way to the alley next to his property from the Catholic Diocese of Monterey. Citing California code, the neighbors, the activists who back them and their lawyer say the wall qualifies as a public nuisance, and that it is within their rights to destroy it.

'Lynch Mob'
It began five years ago with a rash of robberies at Mahony's property. Someone stole a laptop from the home and plumbing supplies from his back yard. He received complaints from his tenants, who said strangers were looking in the windows and leaving garbage. The alleyway behind the house was implicated. So last February Mahony bought the right-of-way, or easement, to the alleyway from the diocese. In April he boarded up both ends of it.

It piqued the neighbors' ire no end to discover that their beloved alleyway—a handy cut-through to Mission Plaza—had suddenly been closed by a landlord they didn't know. One of them, Judy Ziggler, speculated that Mahony's real motive in boarding off the ends of the alleyway was to demolish the wall and expand his yard. She said keeping the alley open was necessary to keep foot traffic flowing through the area, and she pointed out that the path is used by parents who drop off their children who attend the Catholic school across the street.

"They park, and the kids cut through, so it saves a lot of traffic, or they all pile up here," said Ziggler, motioning toward the front of the school. "So it's also convenient for the school." She added that mail couriers also passed through the alley.

In April, the neighbors presented Mahony with 300 signatures and held a bake sale outside the church to raise funds for a legal campaign to take down the fence. They contacted local bicycle and pedestrian organizations and met with Mahony in mediation throughout the month of April.

They discussed several options, including placing gates in the alley or lighting it to keep out the criminal element, but no decision was reached.

Afterward, Mahony said that he felt threatened during the meetings. "I would kind of refer to them afterwards as 'the lynch mob.' They clearly thought that I was lying about the vandalism and the robberies, and they said that I had no right whatsoever and that I was wrong. It was a pretty unpleasant meeting."

No one was lynched, but someone did tear down the boards. After that the bicycle activists contacted then-Mayor Emily Reilly and asked her to contact the city attorney in order to determine whether the easement, or the right to use the pathway, ever belonged to the city. Reilly determined that the city couldn't do anything.

"It turns out, no, it was not a public easement. It is not city property; it was never city property. So we're limited in what we can do about it," Reilly said.

So, they found a different lawyer: Gary Redenbacher. According to Redenbacher, the city attorney wrote the original easement giving Mahony the right of way, and because of this, he could not determine the easement to be public, even if it was. Redenbacher, on the other hand, determined that it was in fact a public easement.

"The case law is pretty clear," he said. "If that easement has been used by the public generally before 1972 or so, then the public has the right to declare that is an easement for their benefit."

'Prescriptive Rights'
Sometime between New Year's and Christmas, Mahony put up a larger fence to replace the smaller one.

As soon as that fence was built, frustrated people began trying to take it down. The first attempt to deconstruct it happened on Jan. 6, when, according to Mahony, a man named Richard Serrano went to the fence with a chain saw and made a U-shaped slash in it before Father Mark, of Holy Cross Church, stopped him by calling the cops.

Interference from the Catholic Church didn't deter the zealous neighbors. They just tried it again during Sunday mass when the father was tending the flock.Posner, who organized the second attempt to dismantle the fence, stood on the sidewalk by the park outside and justified it on legal terms. He cited the fact that some of the older neighbors, like Jack Bower and Rae Ellen Leonard, had been using the path for decades.

"Which means we have a prescriptive right to keep using it, and if someone blocks a public easement then they're creating a nuisance, and there's these codes here [California Code 3502 and 3503] that say if someone creates a public nuisance, then other people have the right to take it away," said Posner. "So today we'll be taking away what we consider to be a public nuisance.

"Really the way to handle this correctly is to go to court, but going to court costs like $15,000," Posner said. "So usually what happens is the greedy landlord would win because they have more money. Who is going to get $15,000? Who is going to represent the public?"

Soon he was over the fence and helping other activists with their tools.

Although Mahony wasn't there that day, he said he didn't put up the fence to larder his pockets with filthy lucre, as the activists say he is.

"That wasn't my real motive, to make some money, that is not correct," he said. "Past the mediation I didn't hear from anybody. I feel like a lot of their anger is directed towards the church, but I seem to be getting the brunt of it," he said.

Sacred Paths
Two days later Posner was in his office stuffing envelopes for a letter campaign with two other members of People Power. He explained that he and People Power were fighting against the ills of car culture, and he encouraged people to think about paths as transportation.

"Transportation is also a little one-block path where you walk to school, that's transportation, and by upholding those tiny walks and walkways we stop global warming, we stop running over our children," he said. "It's a really minor path, but it's part of a huge issue, which is cessation of public right-of-ways, so we're fighting for every one. Every little path in this city is sacred to People Power."

Posner said that in mediation Mahony said he would be willing to sell the property back to the church, if the church would allow it, and that the bishop had said he would be willing to buy it back and keep it open.

Redenbacher agrees. "Mr. Mahony is going to cost himself a ton of money if I have to go into court, because any time you vindicate a public right the courts will award all the costs to the party who gets that public right vindicated."

Mahony says that he doesn't want to sell it back. He said that courts of law were created to deal with disputes like this, and said that he was at a loss to explain the neighbors' motives.

"It's not a shortcut in any way, so I guess I'm a little at a loss as to why people are so extreme about this," he said. "Unless there's some issue I don't know about."


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