The slowly shifting ground in the Berkeley hills area means the land that's yours today may be your neighbor's tomorrow
Patrick Hoge, Chronicle Staff Writer
The land under Robert Mathews' house in the Berkeley hills has slid about 20 feet since the structure was built in 1916. But property lines do not move, which means that today half of his house seems to sit on his neighbor's land. "I figure the property line runs right through the middle of the front doorway,'' he said. Three major landslides in Berkeley and neighboring Kensington are creating a dilemma for residents who, like Mathews, live in the well-populated neighborhoods. When a home, or a driveway or a deck, slips onto a neighbor's land, does it become the neighbor's property? Public officials in the East Bay have tried to stay out of the disputes, some of which have landed in court, but experts say they are likely to face increasing pressure to decide whether property lines should be redrawn when the stuff inside them moves. Mathews didn't worry about the issue when he purchased his home at 1062 Keith Ave. in 1999. The area on his side of the street is part of the Keith Slide, which affects scores of neighboring properties. But Mathews learned recently of two bitter property-line disputes just blocks away that city records show are in a landslide hazard area. In one case, an arbitrator ruled that although the land had moved, a survey determined ownership -- and thus a couple of feet of disputed earth belonged to the downhill neighbor. "Now I'm worried,'' said Mathews. "What is that going to do to my (home's) resale value?'' Scientists have mapped and studied slow-moving slides in California for decades, and there are thousands in the Bay Area, said Richard Pike of the U.S. Geological Survey. Most move only as a result of moisture or disturbance. In June, an international team including UC Berkeley scientists reported that large tracts of East Bay land typically move between 5 and 38 millimeters a year. Land movement in Berkeley has wrecked home foundations, cracked walls and sidewalks, buckled streets and fences and frequently ruptured water lines. Some homes stand abandoned, and others have been rebuilt with massive and deep foundations. But the impacts on property lines in urban neighborhoods have been discussed very little, Pike said. "I'm surprised nobody figured this out earlier,'' he said. "As more people build in the hills, you're going to see this problem get larger and larger and larger.'' Howard Brunner, a consultant to the state agency that regulates land surveyors, said there is no state law specifically designed to address property-line disputes where the ground is slowly moving. "Sooner or later, they're probably going to come up with some law for this situation, but not as yet, that I'm aware of anyway,'' he said. According to Alan Kropp, a Berkeley geotechnical engineer, there are two major slides in Berkeley -- the Keith Slide and the Thousand Oaks Slide -- and one to the north in Kensington called the Blakemont Slide. Hundreds of homes are in the slide zones, which straddle the Hayward Fault. In Kensington, Laurence Ellam said his neighbor in 2002 removed a gate, two trees and part of a brick walkway that his father built when he was 5 years old, and then built a new walkway based on the results of a new survey. Ellam, 58, who with his mother lives at 1 Kerr Ave. on a slope with a stunning view of the Bay, said he spent $10,000 consulting an attorney who said there was little he could do. Other residents in the area, which was developed primarily in the 1950s and 1960s, tell similar stories of changing lot boundaries. Everett Moran, a veteran land surveyor in Berkeley, showed two decades ago that numerous houses in the Keith Slide area were crossing property lines. In an attempt to facilitate the redrawing of boundaries, Moran in 1983 commissioned aerial photographs and superimposed property lines, and the result was dramatic. But getting agreement among all the property owners proved impossible. Richard Schwarzmann inquired about getting a survey of his property on the Keith Slide at 1170 Arch St. before he bought it in 1988, but a surveyor told him it wouldn't do any good because the structures had probably moved. Schwarzmann shrugged it off and built a house on one end of the property and consolidated and modernized two early 20th-century cabins at the other end. In 1996, Peter and Ann Coney of Walnut Creek bought the two-flat apartment building next door and applied to the city to add significantly to the back of the building. Schwarzmann objected, but the Coneys won approval from the City Council. Along the way, neighbors started arguing over the location of Schwarzmann's southern property line, and whether two of his structures were over the line. After several heated exchanges that included police being called, Schwarzmann sued the Coneys, seeking a court ruling that the land was his. It didn't go that way. In binding arbitration, retired Contra Costa County Judge Richard Patsey in October ruled that a 2003 lot-line survey marked the edge of Schwarzmann's land, ordering him to pay nearly $41,000 to help build a new retaining wall and fence, among other things. "I think the whole thing is absurd,'' said Schwarzmann. "The judge said I should go to my uphill neighbor to get my property from them. I don't want to do that.'' The Coneys and their attorneys could not be reached for comment. A nearby resident, Howard Menashe, built a partial fence down the middle of a driveway that crosses his land -- even though his uphill neighbors, Linda Aurichio and Ruth Ellen Pearce, claim they have a deeded right to use the driveway to reach a back lot. Aurichio and Pearce contend in court documents that Menashe built the fence and a concrete barrier in 2003 to block their access after a survey showed that the land had moved significantly downhill -- 5 feet since 1946 alone. Menashe's attorney said the dispute has nothing to do with land movement, but Aurichio and Pearce's lawyer said that is exactly the issue. Philip Daunt, Schwarzmann's attorney, tried to argue that such cases should be decided using the Cullen Earthquake Act, a state law passed in 1972 to allow redrawing of property lines. The law was enacted after an earthquake shifted numerous lot boundaries simultaneously in the San Fernando Valley. The Coneys successfully argued, however, that while the act specifically mentions landsides, it was written to address large, sudden disasters,' not individual disputes arising out of continuous, ongoing occurrences like a slow- moving landslide. In the past two years, Berkeley officials have started routinely requesting lot surveys from residents seeking to do additions or other modifications to their homes. City planning director Dan Marks said it was unlikely that officials would allow modifications to a structure that crossed a lot boundary, or allow such a structure to be rebuilt on the same footprint if it is destroyed. Schwarzmann and others wish that the city or some other government entity would craft an overarching solution to the problem of slow-moving land. Although the arbitrator's decision settled the dispute involving his property for now, the land continues to slide. Assistant City Attorney Zach Cowan said the city has no authority over property line issues. But retired Alameda County Superior Court Judge Roderic Duncan, who lives two doors down from Mathews on Keith Avenue, said he has contacted a friend who works for a committee in the state Legislature in hopes that someone there will get interested. "It's a giant problem,'' Duncan said.
