Monterey ponders major changes for leaseholders on Fisherman’s Wharf.

WEAK, L831, whoever you are. I ran in part on a platform calling for an end to the outrageous profiteering by private merchants on Fisherman's Wharf. Indeed, I thought that was one of the factors leading to the endorsement. Mr Schmalz was not around then, so I am not sure how your comment is relevant.

Let it be known, Bill McCrone received an endorsement from The Weekly for his 2012 political campaign.

It must be delicious to bite the hand that feeds you.

How sad that the Weekly doesn't quite know how to do investigative journalism. A breezy story about "he said/she said" does not exactly constitute going behind the headlines to print all the facts that need to be reported. When there is and has been atrocious private profiteering off of public property for years, costing the public 2 to 3 million dollars a year in lost revenue, one would think that the Weekly would be willing to do a little background research.

Somewhere between the Bolshevik revolution and Goebel's Nazi propaganda machine, it became common wisdom that if you tell a lie often enough, eventually people will believe it is the truth. Such appears to be the position of the Weekly, which continues to print the lie as though it is accepted truth. The Leaseholders on the Wharf do not now nor have they ever nor will they ever own the buildings on the Wharf. They did not build them and they cannot remove them. That is the law in California (and in most of the English speaking world).

It is more likely that pigs will sprout wings and fly to the moon - and back - before you see the ridiculous "spectre" described by David Schmalz in the opening paragraph of this story. And I suppose that is only slightly less likely than that Mr. Schmalz will actually do some homework and research to determine the facts of a story submitted for publication in the Weekly. Laziness abounds.

The people of California own the tidelands (up to the mean high tide mark) forever and ever. In about 1885, the State gave the tidelands around Monterey Bay to the City of Monterey to hold same "in trust" for the public citizens of Monterey in perpetuity. It is in the CA Constitution. The City cannot sell or give away that property, ever.

It is a well-settled matter of law, set forth in too many Supreme Court cases to mention here, that the landowner owns everything that is affixed to his land, whether by piledriver, nail or bolt. For those of you who are law-challenged, that means the City of Monterey owns the mud, the pilings, the deck, the walls, the paint, and everything nailed or bolted to the wharf, including the buildings in their entirety up to the tippy tippy top of the roofs. And it owns all of those things in trust for the public.

No Leaseholder on the Wharf can show you a deed or even a bill of sale giving them title to the buildings, because that would be illegal. With two or three exceptions, those buildings date back to long before 1964, some to 1939. They have always belonged to the public. To the extent that any Leaseholder can actually prove that she improved any building, it was an improvement and maintenance required by the lease to be performed by the tenant at the tenant's sole expense. A cursory inspection of the dilapidated structures will reveal that the Leaseholders have done a poor job of maintaining their premises.

So how did we get to this oft-repeated lie? Past city councils have unfortunately not understood their fiduciary duty to the public and have had a tendency to treat the Wharf merchants (a fair number of whom do not even live in Monterey) as "family" who are not to be troubled with the arms-length negotiations required by law. Ignorant of the law, and the City Charter of Monterey, and uninformed by a negligent city staff, past city councils have allowed these "ground leases" to be negotiated in back room discussions that made no attempt to derive a fair return to the public or to promote the kind of competition that would have encouraged a vibrant, attractive commercial venue to be proud of.

In 1991, the city council merely rolled over the terms of inapplicable ground leases with out any attempt to determine fair market rent, and then capped the careless transfer of public wealth by giving those same tenants 50 years to squat on public property without fair compensation. Overnight, those merchants were made millionaires by the value of paying far below market rent for 50 years, and became in effect feudal lords able to transfer that wealth to succeeding generations without cost whatsoever. The recent sale of Rappa's Restaurant, an unsuccessful moneymaker, for $2 million proves my point.

Regarding the alleged right to remove the buildings within 90 days, your reporter cannot even get the lie correct. These leaseholders have no right to remove our buildings, even if they could prove they had anything to do with building them. The horrendously inadequate lease document, as drafted by the Wharf association's attorney, does contain such a clause but it has been void for many years. The City report merely mentioned its existence but did not "recommend it." That is because a state appellate court has ruled (the Channel Islands Marina case) that any such clause pertaining to property within the Coastal Zone is void since the Coastal Commission would never grant a demolition permit within 90 days nor would it grant such a permit unless presented at the same time with an application to replace and rebuild the structure demolished. You can look it up, Mr Schmalz.

So the blustery threats of Mr Balesteri and Mr DiGirolamo are just that - blustering. Of course anyone with any practical knowledge of the world would realize that the cost alone of over $1 million to remove such structures would be prohibitive. But hang in there with your sensationalism Mr Schmalz. One wouldn't want any facts to interfere with a good story.

The 1939 city council thought that the Wharf was too devoted to commercial interests, and that the public had lost all control of its tidelands trust property. It approved a General Plan that called for the removal of Fisherman's Wharf, and further provided that automobiles would be prohibited from the coastal area east of the Custom house. Again, you could look it up Mr Schmalz, its on the City's website. Contrary to that Plan, we now have what many consider an eyesore of a Wharf, and a parking lot covering paradise. And the public is only now beginning to exert some control over its tidelands trust property.

The City Council has a tough task ahead to try to inject some public interest into the management of the Wharf. Imagine what Cannery Row would look like if the same tired restaurants and shops were there today that were there 40 years ago. It will take patience and fortitude to begin the harrowing process of replacing merchants who have lived a lie for 40 years as though they were entitled to drink from the public trough indefinitely. Getting new and relevant businesses to go onto the Wharf will not be easy, given its existence as a closed market monopoly for 60+ years.

But it must be done. Fisherman's Wharf is a failed business model that will only get much worse for those merchants hanging on for another 37 years. the only people who make money down there, as Mr DiGirolamo famously said in a Weekly article earlier this year, are the sub-landlords who skim the profit from the public and the actual working businesses there, who pay market rent (about 4 times higher than the city rent).

One would hope that eventually the Weekly will get that the victims of this story are the public citizens of Monterey, not the self-entitled merchants. We operate the Wharf for the sole benefit of the private merchants there, who make enormous profit while the City barely breaks even with the paltry rent received after paying the expenses of the Wharf.