Development looms over Martinez open space

By Lisa P. White
Contra Costa Times

Article Launched: 04/19/2008 07:43:10 PM PDT

MARTINEZ When Mark and Lorna Thomson bought their house on Meadowvale Court nearly three years ago, the couple believed they would always have a clear view of an open field and Mount Diablo from their bedroom window.

"We bought there with the idea of it being open space," Mark Thomson said.

But a potential obstruction looms on the horizon.

Gary Freitas, who owns the property at 635 Vine Hill Way down the hill from the Thomsons' house, has been trying for years to get the city to change the designation from open space to residential on three of his acres so he can build four luxury homes.

Scenic easements protect open space, but two incorrectly recorded easements could open up more than 120 acres in Martinez to development. The city, homeowners associations, the East Bay Regional Park District and nonprofit land trusts own most of the 2,600 acres of open space in Martinez. That land is protected either through ownership or scenic easement and is unlikely ever to be developed.

There are also 71 acres of privately owned open space, which includes the Freitas property and the Pine Meadow golf course, where houses or commercial development could one day sprout if the city does not hold a scenic easement on the property.

"The reason we use (scenic easements) is it protects land in perpetuity, in theory, so no one can ever build on it," said Albert Lopez, deputy community development director. "It's a tool the city can use to be able to get open space without having to either own it or rezone it."

Typically, property owners agree to easements in return for city approval of housing projects that include valuable extras such as additional lots or larger lot sizes.

But easements only work if they are attached to the deed. Freitas and the owners of property at 370 Lindsey Drive, where the city was supposed to have been granted a scenic easement on 120 acres, believe the documents were recorded incorrectly.

The City Council classified the Freitas property as "permanent open space" in 1976.

"We have attorneys who are stating that after 25 years, if you overlooked something, it's just too bad," said Freitas, who has sought permission to build on his property three times. "I never signed anything saying I agreed that it can be private open space."

Thomson, who represents a group of neighbors who have hired an attorney to prevent Freitas from building on the land, disagrees.

"It comes down to the fact that the city and developer of the entire subdivision made an agreement that it would be open space," he said. "It was open space, and it should stay open space."

Attorney Scott Sommer represents Peter Ostrosky and Bob Devries, owners of the 163-acre Lindsey Drive property, which is zoned residential.

He said the easement is invalid because the original owner and the city never agreed where the 120 acres subject to it were located on the property. Ostrosky and Devries are suing to force the city to settle the easement issue and subdivide the lots so the partners can sell the property.

"I think the chance of open space being rezoned is probably remote unless we get to the point at some time in the future when it's crucial, and we need land for homes," said Mayor Rob Schroder.

Schroder said the original owner of the Ostrosky property never bothered to record the easement, although the council approved a resolution accepting the 120 acres as open space in 1985.

About the Ostrosky matter, Schroder added, "I think the intent is pretty clear what the city was asking for and what (the orginal owner) agreed to, so it's going to be played out in court."

Lopez, the deputy community development director, acknowledged that both easements were incorrectly recorded, although he said the original owner of the Lindsey Drive land, not the city, dropped the ball.

"That's the big lesson to the city. You have to record them properly to make sure you don't have problems," Lopez said. "That, of course, makes the land much more vulnerable."

According to the Greenbelt Alliance, Contra Costa County has 210,000 acres of open space which are protected by policy, such as being located outside the urban limit line. Of those, the group says about 82,000 acres still are at risk for development.

Christina Wong, East Bay field representative for Greenbelt Alliance, said privately owned open space is not uncommon in the county, nor are attempts to build on it. Property owners often ask for zoning changes or general plan amendments to shake the open space restrictions, she said.

"You can't take designated open space for granted; things can always change based on political changes or property owners," Wong said. "The bottom line is there are several ways that people continue to build on open space, and it's really up to the community to protect this open space by always being vigilant."