See page 103 of Board of Supervisor agenda Item 63 for Aptos Village Project 2012 approval

“Therefore, any action to close this railroad crossing outside of the AV-PUD would amount to a “taking”. I am looking to the CPUC to provide me with some relief.

I have not given permission to the Santa Cruz County Public Works Department to abandon my railroad easement that crosses the railroad track and provides the right-of-way to and from Soquel Drive to the front parking for my Trout Gulch Crossing building and the front parking for the Bayview Hotel;

A quick review, CPUC Crossing No. 017B-12.51-X is a private easement over the Union Pacific Railroad tracks serving Trout Gulch Crossing (APN: 041-011-35) and the Historic Bayview Hotel (APN: 041~011-34). In 1876, José Arano recorded an easement for this site with the County of Santa Cruz for a new right of way used by Santa Cruz Railroad Company. Since that time Southern Pacific and Union Pacific (and maybe Sierra Northern Railway (SNR) – it is unclear to us if SNR is stil involved) acquired control. José Arano is one of the original founders of Aptos Vilage and a family member of the owners of Rancho Aptos (Castro Family). He also built the Historic Bayview Hotel in 1878, first named the Anchor HoteL.”

Below is the actual 1876 Deed language, signed by Jose Arano and allowing the Santa Cruz Railroad an easement across the Hotel property on condition the crossing be kept open in perpetuity.  

Will the County ignore this legal document, or declare Eminent Domain action to take the land and close the historic Bayview Hotel crossing to help the Aptos Village Project developers?????

Completed Transcription of Deed 22 Jose Arano  December 30, 1876:

Deeds 22 page 363:

This indenture made this thirtieth day of December A.D., 1876 by which I, Jose Arano of the County of Santa Cruz, State of California do hereby grant to the Santa Cruz Railroad Company for a right of way and for the construction operation and maintenance of it’s main track of its said  road and side track and for a depot all that certain tract of land situated on the County of Santa Cruz, State of California and being a part of the Aptos Rancho, and bounded and described as follows to wit commencing on the north side of County road leading from Santa Cruz to Watsonville at the southwest corner of the lot of said Jose Arano, thence leaving said County road and running along the western boundary of the said Jose Arano’s lot North 37(degrees) 06′ East eighty nine and one half feet a little more or less to a stake which is twenty seven and one half feet northerly from the center line of the sidetrack of the Santa Cruz Railroad as located in the ground: thence south 49(degrees) East two hundred and six feet to the west side of the Trout gulch road at the intersection of the said west side of the Trout gulch road with the present poling fence: thence south 35(degrees) 30′ west along the west side of the said Trout gulch road eighteen feet a little more or less to the north side of the said County road leading from Santa Cruz to Watsonville: thence westerly along the north side of said last named road two hundred and seventeen feet to the place of beginning.  Courses true {magnetic variation 16(degrees) 30′ east. But this grant is made upon the following conditions which are the only considerations moving to said Jose Arano therefor.  That said railroad

Deeds 22 page 364:

Company shall plank or pave and as construct and maintain it’s main and side tracks that they shall not be an obstruction to the said lot or from the same, and shall grade the ground hereby conveyed as is to be level with said tracks as near as may be, and shall erect, construct and maintain it’s main and side tracks on and across the lands hereby conveyed so as to provide good and convenient crossings from the lot of said Jose Arano to the County road herein first named and shall keep the entire front between the said county road and said Arano’s lot open and clear and shall not construct any structures of any kind on the land hereby conveyed and granted except the said main track and side track with it;s switches and a passenger platform which shall be on a level with said tracks, and that no lumber, timber, stone, earth or any other freight shall be stored or piled upon the lands hereby conveyed and granted provided this shall not be deemed to apply to freight or baggage brought to the tracks for immediate shipment or landed therefrom for immediate delivery, said Arano reserves the full and free right of way over and across the lands hereby conveyed to and from his said lot to the north thereof the said Railroad Co. to remove and put up the fence on the line of the land hereby granted, and further that no side track or switch shall be ever constructed so as to be nearer than twenty feet to the south line of said Arano’s lot without a special consent from him had in writing for that purpose.  That all the terms and conditions hereof shall apply to and bind the heirs, assigns and successors hereto

Deeds 22 page 365:

of the said parties.  In Witness Whereof the said Jose Arano and the said Railroad Company by its President to F. A. Hihn who is thereto duly authorized have herewith set their hands and seals this year and day first above written the words, “plank or pave and” on 11th line 2nd page the word “immediate” on margin of the 6th line 3rd page and the word “him” on 16th line 3rd page inserted before signing.               
               

   Jose Arano
   Santa Cruz Railroad Company
   by F. A. Hihn, President
    State of California      }
    County of Santa Cruz }

On this thirtieth day of December A.D. one thousand eight hundred and seventy six before me H. E. MaKinney, County Clerk and ex-officio clerk of the County Court in and for said County, personally appeared F. A. Hihn, known to me to be the President of the Corporation that executed the within instrument, and he acknowledged to me that such corporation executed the same.  Attest my hand and seal of said Court, the day and year last above written.

(Seal)  H. E. MaKinney
County Clerk

State of California    }

County of Santa Cruz}

On this thirtieth day of December A.D. one thousand eight hundred and seventy six before me H. E. MaKinney, County Clerk and Ex-officio clerk of the County Court in and for said County, personally appeared Joseph Arano, known to me to be the person whose name is subscribed to the within instrument and who acknowledged to me that he executed the same.  In

DEED 22 Page 366:

Witness Whereof I have hereunto set my hand and affixed the seal of said Court the day and year in this certificate first above written. 

E. MaKinney, County Clerk and Ex-officio Clerk of said County Court

Filed for record at the request of F. A. Hihn Dec. 30, 1876 at 45 minutes past 9 a.m. recorded Jan. 27th, 1877. 

APTOS VILLAGE PROJECT PARKING OPEN TO ALL?  NOPE!
Way back in 2010 through 2012, when Second District County Supervisor Ellen Pirie labored to convince everyone that the Aptos Village Project was a wonderful thing, many people felt (and still do), it was too much development crammed into the space and would cause parking and traffic nightmares.  

We were assured by Swenson Builder Vice President, Mr. Jesse Nickell, that there would be free and unlimited public parking within the subdivision.   

That is now proving to not be true.

Here is the e-mail Mr. Nickell (who lives in Santa Cruz City limits) sent to the Planning Commissioners, claiming “open and shared parking for all to use”, including visitors to the nearby Nisene Marks State Park.   

(SEE PAGE 276)

From: Tom Burns 
Sent: Wednesday, January 20,20108:22 AM 

To: Glenda Hill Subject: FW: Support for the Aptos Village plan Tom Burns Planning Director County of Santa Cruz 

—–Original Message—– 

From: Nickell Family (mailto:                   ) 
Sent: Sunday, January 17, 2010  9:40 AM 
To: Tom Burns 
Subject: Support for the Aptos Village plan 

January 14, 2010 

Dear Planning Commissioner,
 Re: Aptos Village Planning Commission Hearing Feb. 10 th at 9:00am

 My Family has lived in Santa Cruz County for 21 years and we are very supportive for the approval of the revised Aptos Vilage master Plan. 

The plan will provide the following: A true Town Center that will Anchor the heart of the Aptos Vilage Community, it will provide Up to 300 long term local jobs and 150 construction job, a green project with Sustainable rain garden for storm drainage, environmentally friendly building, it’s Privately funded project and it reuse to the Apple barn, Community sponsored concerts at village green and farmers market, it will add property tax, sales tax, and afford able housing to the county, added open shared parking for all to use (including Nicene Mark users) . 2 new Traffic lights will reduce traffic congestion and the Project will bring many economic benefits to the Aptos 

Sincerely, 

Jesse Nickell 

Nickell Family Christine, Jesse, Oliver and Jesse   Clinton Street, Santa Cruz CA

*********

Now, take a look at the attached photos of new multiple signs recently installed by Swenson to restrict public parking on Aptos Village Way, Parade Street, and the largest parking lot near Cathedral Drive and Trout Gulch Road.

Parade Street

Entrance to Aptos Village Way from Trout Gulch Road

Retaining wall in parking lot next to Cathedral Drive and Aptos Post Office

Parking is already a huge problem…and this is only with Phase 1 built.  Take a look at what the Modified Phase 2 plans approved by the Board of Supervisors in 2018 look like

Page 5 shows the parking numbers.  How will the County enforce the parking numbers promised along Aptos Village Way when Swenson has essentially erased the space delineator markings?

What a mess.

ARE THE VILLAGE DRIVE PROPERTIES LEGALLY CUT OFF?
Fire engines and ambulances used to access calls on Village Drive in the Aptos Village via a dirt road from Aptos Creek Road.  This small street with a few houses and apartments may now be impaired because the Aptos Village Project developers blocked the prescriptive easement to Aptos Creek Road, leaving only a foot path.

Who knows what deals were made.  However, the 2012 letter below filed by one of the Village Drive property owners (who happened to be the County Planning Director’s husband at the time) is telling.

(See Planning Dept staff report to the Board of Supervisor agenda packet page 113)

The “deed restriction easement” language on the titles of and which encumber the subject Aptos Village parcels in favor of the 100 Village Drive property provide that: “Said right of way to be free, open and unobstructed, and to be forever appurtenant to the lands of second party adjoining the parcel of land above described on the northern and western sides thereof.” “Said right of way to be free, open and unobstructed, and to be forever appurtenant to the lands of second party adjoining the parcel of land above described on the southern and eastern sides thereof.”

In 2009, PPG objected to the temporary security fencing and chaining off of access to the easement areas, but agreed with developer representatives that such fencing did not change the nature of rights over easement areas. The prescriptive easement from the “T. Hopkins” / Aptos Creek Drive right of way over the “parking parcel” has served as the primary access to 100 Village Drive during the time that the temporary security fencing has been installed and allowed to remain, with the understanding by both parties that 100 Village Drive access rights were not being extinguished.

In exchange for giving up all of these existing rights, the developer offered to grant an easement over about 10,302 square feet of their property that is proposed to be a new extension of Granite Way, as well as to provide a nominal payment to compensate for some, but not all, of the easements and access rights to be extinguished. Note that no offer of an easement to or access rights over the existing unimproved and unaccepted Granite Way was made, which seems to reflect the fact that the developer is not in a position to provide such a right. The net result of the offer would be that 100 Village Drive relinquishes its access and real property rights with no substitute legal and permanent access having been provided. This, of course, is not acceptable.

It should be understood that the total area of 100 Village Drive Parcels Three, Four and Five that the developer wishes to extinguish is about 16,242 square feet (almost li acre), and the area of the other access easements encumbering the Aptos Village site in favor of the 100 Village Drive parcel that are shown by the developer on Exhibit One (and which do not fully represent all easement rights associated with 100 Village Drive) is at least 37,000 square feet (almost 1 acre). At this time, the developer proposes to substitute inferior and insecure access, with inadequate compensation for agreeing to quitclaim all rights of access through the development site.

Land value is usually allocated between fee and easement interests, but the developer’s offer reflects retaining nearly all of the value with the developer, even though the developer’s interest is the “servient estate” to the “dominant estate” of the 100 Village Drive owner. Furthermore, while the developer proposes that the Quitclaim Deed be signed now (which would be an irrevocable relinquishment of rights), the payment would only occur if the County accepts Granite Way into the public street system. 

The staff report to the Planning Commission regarding this project reflects uncertainty about whether that can or wil occur. The low level of the offered payment, half of which would only occur upon recordation of the Final Map with the other half to occur upon commencement of project construction, could be interpreted to mean that the project is not feasible at this time. All of this leads this owner to a conclusion that it would be foolish to agree to the developer’s latest proposal and relinquish easement and access rights at this time.  

PPG met with developer representatives several times in 2009, but it did not appear that the developers had any sense of urgency to resolve the 100 Village Drive access concerns or interests in the easements encumbering their development site. In 2009, PPG objected to the temporary security fencing and chaining off of access to the easement areas, but agreed with developer representatives that such fencing did not change the nature of rights over easement areas. The prescriptive easement from the “T. Hopkins” / Aptos Creek Drive right of way over the “parking parcel” has served as the primary access to 100 Village Drive during the time that the temporary security fencing has been installed and allowed to remain, with the understanding by both parties that 100 Village Drive access rights were not being extinguished.

It is evident from County records, that in conjunction with creating the Monte Toyon subdivision in 1928, various streets including Granite Way and Mattison Lane in the vicinity of the 100 Village Drive property were “offered for dedication as streets and highways for public use.” However, on that same subdivision map that was recorded and filed, there exists the signed statement of the County that: “The Board of Supervisors of the County of Santa Cruz approves this map but does not accept any of the streets shown thereon, as public highways.” While the County may still have the option open to decide to accept the street into the public road system, nothing has been made clear to this owner as to whether the offered alternative access wil be achieved as a legal route for 100 Village Drive. Granite Way is a private street that may have been improved to some extent after the subdivision was approved in 1928, but it appears to have never been maintained and presently it is a dirt road with potholes and ruts that make it difficult to drive unless some benefactor from time to time takes unofficial action to try to fil some holes or level out some ruts. 

It must be emphasized that the 100 Village Drive property was not part of the Monte Toyon subdivision, and it has no associated legal right of access to Granite Way (or even to Mattison Lane, which is blocked off at its connection with Village Drive).

The developers have talked enthusiastically about the positive attributes of developing the Aptos Vilage project, as if development of the project itself should serve as adequate compensation. That point of view is not supported by standard real estate principles. Also, any motivation to sign a Quitclaim Deed is further lessened by the fact that the requested trade of easement area pushes the townhomes closer to the 100 Village Drive property, which negatively affects property value. There would be three-story townhomes constructed immediately adjacent in a manner that would shadow the property and extinguish existing views of the Pacific Ocean. Also, someone trying to access Village Drive, such as a visitor or prospective tenant, would perceive the experience as driving through private driveway areas of the adjacent new townhomes in order to (somehow) find Village Drive, the entrance to which would appear more like a driveway.

It is not clear why there would be any expectation from an experienced developer that a knowledgeable owner would simply give up access to their property as well as remove encumbrances from an adjacent project site in order to facilitate development of that site, without being ensured appropriate and permanent substitute access, as well as appropriate compensation for the value of real property interests within the development site. It is understood that these are complications that the developer would rather avoid, but it is also likely that the developer acquired the site at a price that reflected the encumbrances, difficulties, and failed prior attempts by other developers to fashion a feasible project. 

It should be obvious why it is necessary at this time to go on record to explain and protect the interests associated with the 100 Village Drive property. Any agreement to relinquish existing legal access for 100 Village Drive without first securing alternative legal access would result in a significant negative impact on the value of the Village Drive property and encumber it to the extent that it would not be financeable and virtually unmarketable. 

In summary, at this time it should be understood that the Aptos Village Project as proposed is unbuildable. In order to build the project, the developer will need to resolve access and easement issues prior to filing a Final Map. Continued communication and negotiation between the parties should be able to achieve that objective. 

Respectfully, 

Pacific Property Group 
7960 Soquel Drive #381 
Aptos, CA 95003 

cc: Barry Swenson Builder/Green Valley Corporation County Planning Department

******

Pacific Property Group is owned by John Previsich, and was the husband of Santa Cruz County Planning Director Kathy Molloy-Previsich at the time.  

The property described at 100 Village Drive is a single family residence converted to a triplex, and is now walled off from any ocean views by the massive and dense three-story townhouses built on Granite Way.  It is reported that Swenson paid Mr. Previsich handsomely ($300,000) for an easement, and settled with the other Village Drive property owners as well.  

One of those owners refused to accept monetary bribes, insisting only that the mature Coast Live Oak tree that would shield her view of the Townhomes be saved.  

It was and remains the one and only tree left on the entire subdivision land.  Many thanks to Ms. Wilson.

The only tree that was saved on all of the Aptos Village Project land.  
(Many thanks to my friend, Al, for this photo.)

FOR THE WHOM THE BELL TOLLS…….IT TOLLS FOR THE TREES AT 1500 CAPITOLA ROAD IN LIVE OAK
The historic Merriman House and nearly 100 trees are tragically gone.  It appears the highly-contaminated soil at the site continues to be tested, but will the toxic volatile PCE pollutant be cleaned up?  Stay tuned……

You can read about what has been lost here

NEW FIRE RESTRICTIONS COMING OUR WAY COULD MAKE SOME CZU FIRE REBUILDS DIFFICULT
Last week, the State Board of Forestry approved the proposed new Fire Safe Regulations that will potentially make new building and rebuilding in the CZU Fire areas financially impossible for many.  FEMA and insurance re-imbursements only cover replacement, not improvements, and is some areas, CalFire’s new road requirements are physically not possible.

The Board’s action now soon opens the proposed Fire Safe Regulations for 45-day public comment.  The Board will likely approve the regulations to become effective July 1, 2021. 

This will affect properties in the local fire district areas with Very High Fire Risk Severity Zones.  Currently there are none in Santa Cruz County, but these determinations were made in 2007. When they are updated, will this change?   Stay tuned…..

Welcome to Fire Hazard Severity Zones Maps

Here is what the Rural County Representatives of California (RCRC) newsletter stated last weekend:

On Monday, the Board of Forestry (BOF) approved its Fire Safe Regulations proposal for submission to the Office of Administrative Law (OAL).  Supervisors and county staff from 20 RCRC member counties made oral comments during the meeting, unanimously requesting that the BOF delay moving the proposal forward until it convenes a multidisciplinary working group of local government planning and fire safety experts to collaborate on the rulemaking language.  Of the eight members present and voting, only BOF members Husari and Los Huertos voted not to approve the proposal for submission to OAL.  Once the proposed rulemaking is published in the Regulatory Notice Register, the formal 45-day public comment period will begin.

The revised draft proposal released March 15th makes substantial changes to the previous version that was released in early February.  The proposed rules continue to condition the rebuilding of homes destroyed by wildfire and appears to expand the number of roads subject to the pre-development upgrade requirements. Several portions of the draft language are unclear and create questions on applicability.

The State Fire Safe regulations set forth basic wildfire protection standards for development in the State Responsibility Area and, beginning July 1, 2021, the Very High Fire Hazard Severity Zones of the Local Responsibility Area.

For updates from the BOF on the Fire Safe Regulations and other activities of the BOF Resource Protection Committee, subscribe to email updates here. And, for more information, please contact RCRC Senior Legislative Advocate,Tracy Rhine. 

Board of Forestry Approves Fire Safe Regulations Proposal | Rural Counties