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Whose Rights Are Being Trespassed Here? : Property: In California, owning land is not quite an offense, but isn't something that entitles one to the benefits of law enforcement, either.

January 22, 1990|GIDEON KANNER | Gideon Kanner is a professor of law at Loyola Law School in Los Angeles, where he teaches property, land-use controls and eminent domain

It seemed a classic Christmas-time news item. In San Diego's rural McGonigle Canyon, a fire had destroyed a community of makeshift shacks that housed Mexican farm workers, many of them illegal migrants. At least 100 were left homeless. Before long, however, the residents began rebuilding their camp. Employers donated wood and other building materials. The Rev. Rafael V. Martinez of the North County Chaplaincy provided a dozen prefabricated plastic-and-wood sheds. The San Diego Housing Commission contributed $10,000 in emergency aid, to be distributed by Catholic Charities. Altogether, these events renewed one's faith in human compassion and the resiliency of the human spirit.

But there is more to the story. As Martinez put it: "The position of these people is that they ain't going anywhere. If they're forced out of here, they'll just go over the hill to another canyon." Why would he say such a thing?

The answer entails a case of legal nonfeasance and of morality stood on its ear.

For starters, the farm workers were trespassers. Most of the land that they had transformed into a migrant camp--about 78 acres--belongs to Bob Scarcia, a 60-year-old retired concrete contractor, and his wife, Beverly. The Scarcias learned of the squatters' camp last May, when they saw it on television. "The lieutenant governor had come down to get his picture taken on my land," recalled Scarcia, "demanding that something be done."

Done about what?

The squatters' encampment, of course.

Scarcia's subsequent visit to his property, which he had bought as an investment, revealed the extent of his problem. "There were these cardboard and wood shacks everywhere, and people milling around. There was litter and trash all over."

Scarcia reacted as most people would: He called the cops. But the two San Diego policemen who responded laughed when Scarcia asked them to remove the trespassers. They did stick around until Scarcia had posted bilingual "No Trespassing" signs. But, sure enough, as the officers had predicted, the camp dwellers tore the signs down. (Willful trespass or removal of "No Trespassing" signs is a crime under the California Penal Code.)

Ever since, the Scarcias have been wandering through a Kafkaesque world of municipal bureaucracy, fruitlessly trying to get city authorities to enforce the law. Adding insult to injury, the City Hall folks who refuse to enforce the law against trespassing have informed the Scarcias (along with half a dozen other landowners in the same predicament) that the squatter camp on their land is in violation of a host of city health and fire codes and, as such, it is the landowners' responsibility to do something about it. (California law frowns on landowners taking the law into their own hands; recourse to the law is mandatory, on pain of tort liability.) Short of that, the city would do it and bill landowners.

So far, that threat has not materialized. The trespassers remain in McGonigle Canyon. The Scarcias dutifully pay their property taxes and face exposure to tort liability damages for injuries that could be suffered by the trespassers who refuse to leave their land. Several such lawsuits have already been filed against other San Diego landowners.

Welcome to California, where ownership of land is not quite an offense, but it isn't something that entitles one to the benefits of law enforcement, either.

Even a person only casually acquainted with California's land-use laws knows that if the Scarcias had tried to develop their land in McGonigle Canyon by building homes or apartments, they would have been subjected to strict enforcement of many laws and regulations governing land use, air quality, health, sanitation, safety, utilities and traffic. Also, they would probably have to donate land to the city and pay "exaction" fees for schools, parks, roads, sewers, etc. Finally, since most Southern California officials are converts to the "slow-growth" ethic, it is less than a sure bet that the law would permit the Scarcias to build in the first place.

Yet when a band of trespassers grabs someone else's land and sets up a community in open defiance of virtually every known land-use, health, sanitation and building-safety law, municipal law enforcement is not only impotent in dealing with the violators. In a grotesque perversion of the legal process, it also threatens the victims with the cost of enforcing the law.

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