Politics & Government

Town lawsuit may go to trial

Year and a half, $115,000 leads to court-mandated settlement conference

UPDATE: The court-mandated settlement conference between the town and the Bergs on Aug. 11 did not lead to a settlement. The conference was extended and will reconvene on Sept. 15.

"We're still in the settlement conference process," said Mayor Lew Tremaine.

If a settlement is not reached at the court-mandated conference, then the case will go to trial.

Find out what's happening in San Anselmo-Fairfaxwith free, real-time updates from Patch.

Read the original article below for background on the lawsuit.

This article was first published on Aug. 3.

Find out what's happening in San Anselmo-Fairfaxwith free, real-time updates from Patch.

After a year and a half and $115,000, the town of Fairfax may finally be reaching the end of its lawsuit against John and Marlia Berg. Following a court-mandated settlement hearing next week on Aug. 11, the dispute over an easement access across the Berg's land will either be settled or go to trial.

"We feel that we're being reasonable and I'm sure the other party does too, but it's just a real difference of philosophy," said Fairfax Town Manager Michael Rock.

The town filed a lawsuit in December 2008 claiming the Bergs illegally put a locked car gate across an easement providing access to town property from Meadow Way. The Bergs also posted signs stating no dogs or cyclists on the pathway.

"We're trying to secure access over a recorded easement to our open space," said Councilman Larry Bragman, who originally brought the issue to the council. "We're trying to secure safe, public access as we are legally entitled to."

In 2005, the town purchased the property directly adjacent and behind the Bergs' property on Meadow Way. Both properties are outside town limits in unincorporated county land.

The town-purchased land was accessible from two easements running across the Berg property, allowing the public to access the open space. According to a resolution approving the town purchase, the land was to be designated for "open space, recreational, aesthetic values, environmental preservation and protection of endangered species."

"It's beautiful and relatively unspoiled," said Bragman. The five-acre parcel is also a spotted-owl habitat.

The town claims in the suit the Bergs would have no basis to restrict access if the town-owned parcel had been purchased by a private owner or developer.

The Bergs, however, have argued they regularly provide the town's Police, Fire, and Public Works Department with the access code to the car gate, and pedestrians can access the property through a small wooden gate on the side of the road. They also posted a sign on the pedestrian gate stating no dogs and no cyclists.

The Bergs' lawyer, Neil Sorenson, was not available for comment, but he has previously stated the town has no right to turn the Bergs' property "into a public park."

For the last year and a half, the two parties have been attempting to reach a settlement agreement and have failed. They are now left with one last chance to reach a compromise. Before going to trial, the court mandates that both parties go through a court-mandated settlement hearing, which will be held on Aug. 11.

"If it doesn't work, then it'll go to trial," said Rock.

Though there seems little reason to believe a settlement will be reached now, Rock said that it could happen.

The town has spent $115,000 to date on surveyors, experts and attorneys. The town is represented by attorney John Sharp. Though some residents have criticized the town's use of funds in the lawsuit, Bragman has argued that it's necessary to set a precedent and solidify the public's access rights.

"The laws about equity and what's right and we're trying to do what's right by the people of Fairfax," said Bragman.


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