Menifee's Plan to Pave Private Portion of Holland Road Based on Legal Claim of Longtime Public Use, City Official Says

A Menifee city official said Saturday that the city has determined it has the right to proceed with the paving of a 1,200-foot dirt section of Holland Road because of a legal standard regarding prior public use of private property.

Rob Johnson, senior manager of the city's Community Improvement Department, said public use of that road for decades gives Menifee legal grounds for paving that portion of private property.

"This section of Holland Road is a private road publicly used and county maintained for about 60 years," Johnson told Menifee 24/7 in an email on Saturday. "Because the public has used this road for at least 60 years, the city evaluated its use and determined that the public has a prescriptive easement. Acting on the public’s behalf, the city can use the public’s prescriptive right to pave the road."

Johnson's explanation was in response to a request by Menifee 24/7 for clarification on a news release he sent to the media on Tuesday. The original announcement simply stated that Menifee "has developed a way" to pave a dirt portion of Holland Road west of Murrieta Road -- a road that at various points cuts across the land of four property owners.

One of those property owners is Tom Fuhrman, owner of the Wooden Nickel Ranch. Fuhrman has long maintained that he and the other property owners would be willing to sell a portion of their land to the city to get the road paved. But because Fuhrman is now a member of the Menifee City Council, the issue has become more complicated.

City council member Tom Fuhrman explains problems with a dirt portion of Holland Road.

Johnson said that in order to make improvements beyond simply paving the road -- such as widening it, adding gutters or sidewalks -- the city would have to acquire some of the property. This would involve a lengthy court process because of Fuhrman's personal interest in a city matter.

For that reason, and after evaluating the land use, Johnson said, the city has decided to pave only that narrow, hilly portion of land established as a public thoroughfare, as an "interim improvement to the condition of the road."

The city has been under pressure to improve road conditions there since the opening of the new Herk Bouris Elementary School about a mile west of Fuhrman's ranch. Hundreds of additional vehicles, including school buses, now travel that narrow, bumpy road twice a day.

"The property owners want to be relieved of the liability," Fuhrman said in an interview in August, expressing concern about the narrow road, high speeds of some motorists and lack of a sidewalk. "There's got to be a take of some kind from the property owners that can be worked out. I wrote a letter to the city saying I'm willing to cooperate, but I also want to make sure the road is safe."

After the city's announcement last Tuesday about the plan to pave the road as is, Fuhrman said he had heard nothing about such a decision. He said he was told only that the property owners would receive a letter in the next two weeks, stating the issues that have to be addressed.

It appears, however, that city officials decided their best solution to a difficult situation is to claim the legal grounds of prescriptive easement, which could avoid a court battle over the acquisition of additional land.

A prescriptive easement is defined as the process by which one acquires only the right to use the land of another. According to the California Real Estate Lawyers blog, two of the conditions necessary to prove the right of prescriptive easement are:

-- The claimant must occupy or utilize the land in circumstances providing reasonable notice to the owner.

-- The occupancy or use must be continuous and uninterrupted for five years. The period for both is established in the Code of Civil Procedure.

"If the city were to make improvements to the road to its final condition, which may be to widen the roadway, add curb, gutter and/or sidewalk, the city would need to acquire property to do that," Johnson said in the email.

"As discussed in the May 1, 2012 staff report at City Council, the city is not able to purchase or receive property from a city council member and would have to acquire the right-of-way through a 1090 procedure, or what is considered an administrative court process (about an 18-month process). This would protect the council member from any conflict issues and provide a process to acquire the property.

"This does not stop any other property owners from offering to sell property to the city, but the city would not be able to acquire property from a council member without going through this court process."

Johnson said city officials are still working on a timeline for the paving project.