Fairfax Will Appeal Berg Decision; Won't Use Town Money

The Fairfax Town Council announced Wednesday night that it would be appealing in a property access that ruled the town did not have the right to an easement across John and Marlia Berg’s property.

“Contingent on the appeal not being paid for out of the general fund,” said Mayor Larry Bragman.

The council is still considering how it will go about fundraising the money necessary for the appeal, but held a public discussion of the case at the March 2 council meeting. A number of residents have expressed concern at using town funds for the lawsuit.

At issue is a town-owned piece of open space access off of Meadow Way. The property, which hosts a redwood grove, had historically been a popular recreation area for walking and hiking. In 2004, after a developer considered turning the area into a small subdivision, the Fairfax Open Space Committee formed and led an effort to gather donations to purchase the land for the town.

“We flipped a lot of flapjacks to pay for this,” said Mimi Newton, Chair of the Open Space Committee.

Christine Pielenz, who lives near the property, felt moved to donate $10,000 to help preserve the open space, she wrote in a letter to the council.

The open space was accessed off of Meadow Way via an easement that runs across John and Marlia Berg’s property.

In 2008, the Be, citing disruptions caused by hikers, cyclists and dog walkers tramping across their land. Signs later went up saying no dogs or cyclists allowed.

The Bergs contend that access was still available via a small wooden gate to the side of the road and that they gave the access code to the metal gate over the road to town staff, police and fire departments.

The town filed a lawsuit against the Bergs 18 months ago and underwent negotiations before .

In that the public did not have a right to access the open space across the Bergs land. The judge suggested that access could be had from Bolinas Road, but a number of residents spoke Wednesday night about the steepness of the land from Bolinas and about the fact that the Marin Municipal Water District has a legal easement there that wouldn’t allow town access.

“I don’t understand how the court could make a decision that would effectively reduce the town’s property rights, and strip the townspeople of the town’s right to visit a property many of the townspeople contributed to purchase,” said Bragman.

“This is not what I had hoped my donation would help achieve. It's a huge let down to all the people who contributed whether with money, time, or any other efforts,” wrote Pielenz in her letter.

The town, which has to date spent $160,000 on the lawsuit, will appeal the ruling without paying for it from town funds.

Newton said the Open Space Committee felt so strongly that the town needed to defend its property that it voted at its last meeting that up to $15,000 of the Open Space Committee’s funds could go towards the appeal.

Former Mayor Frank Egger also pledged $1,000 to the appeal at the meeting.

Because the appeals process is not expected to be a quick one, the town council said they have time to discuss fundraising later.

“Long after the price is forgotten, the quality remains,” said Ryan O’Neil, Co-Chair of the Open Space Committee, urging the council to appeal the decision.