Barry G, post: 404370, member: 12296 wrote: Hello Dave: These are two interesting cases, understand both. Both are for Charter Cities, not General law Cities or Counties Both are in towns, not residential housing tracts, with separate rules, dedications, SHC 941a and 1806, not SHC 5600-5630, which is specific for towns, property maps dimensions, etc. Both courts ruled that a Municipality can not pass 100% liability to adjacent property owners. Please read Ventura County Ordinance 4355, Ventura County, 23 December 2006. This Ordinance adds things to SHC 5600-5630, that are not in the 1911 law. Its passes 100% duty, responsibility and liability to adjacent property owners. All court cases decisions state that this cant happen. Remember, in our case, the parkway trees that are owned by the County have caused sidewalk damage. They also claim that they maintain the tree roots, yet they failed to do so. Please read Willits vs LA 2010, current ruling. Was Los Angeles not responsible to maintain the public rights of ways in housing tracts? Federal Judge ruled against Charter City of LA. Why? If housing tract owners are responsible under SHC 5600-5630 to maintain the parkway trees, roots and sidewalks, why did a Federal Judge not rule for Los Angeles? Any thoughts?
I did read the ordinance, that's why I did additional research into the issue at the Sacramento County Public Law Library.
The ordinance establishes a duty of the abutting owner to the public which SHC 5610 does not do. Whether that is legal or not is a somewhat intricate question. Pursuing this yourself in Court will be crazy, especially against an experienced litigator like the County Counsel who is very familiar with the Court rules and rules of evidence. Be prepared to confront a blizzard of objections to your attempts to use uncitable cases like the Federal case you keep mentioning. You won't get any breaks because you are a lay attorney representing yourself.
I think the County can establish a duty as long as it doesn't cancel its own tort liability in the matter because that would be contrary to the Tort Claims Act.
If you really have a legitimate beef against the County's ordinance provision (which you may have) then you should get a group of property owners together to hire a Litigator experienced in this type of thing. You need a specialist which equals big dollars. If you prevail in Court then be ready to fight the County's appeal (I doubt they will take a loss in Superior Court without an appeal) which will be best handled by an appellate specialist.
Barry,
Try to distinguish between ownership and control. The dedication of a public right of way is of control of that portion so designated on the map. To the extent many elements are maintained within that area, the local agency is the one which controls (by permit) appropriate use. Think of the public utilities contained within the right of way. Water, sanitary sewer, and storm drains are among them, along with power, communication and the like.
The pavement is maintained through the application of gas tax revenue. Sidewalks, particularly in unincorporated territory, are an amenity for the non-motorized use of local residents. Landscaping can also fall in this category, and is often paid for through an assessment district. These measures are to allocate maintenance to a neighborhood or community, rather than the residents of the County as a whole.
Should the need of the general public to travel a given stretch of public right of way be determined to be no longer necessary, vacation proceedings are held, a resolution adopted and recorded, and the public encumbrance is lifted. Adjacent landowners are then free from the right of the public to access the strip, and the underlying fee title ownership becomes what it always was - when created by a simultaneous creation known as a subdivision map - and no longer encumbered. The gross area is then assessed for tax purposes at that time, since control has reverted to the adjoining properties.
Your issue has more to do with proximate cause of the damage to the sidewalks, e.g. tree roots. Pursue that avenue, since maintenance of adjacent sidewalks under normal circumstances is a settled issue.
Reading more carefully, Justice Davis's beef with the City of Sacramento's ordinance is that it says the abutting owner bears all the liability for sidewalk accidents. The City can't transfer all the liability but they may be able to establish a duty of care to the public. Someone who is hurt could still sue the County but they would possibly have an additional cause of action against the property owner created by the ordinance.
I don't think Barry's attempt to distinguish Cities, Counties, urban, and rural areas will hold up in Court.
Dave Karoly, post: 404383, member: 94 wrote: I did read the ordinance, that's why I did additional research into the issue at the Sacramento County Public Law Library.
The ordinance establishes a duty of the abutting owner to the public which SHC 5610 does not do. Whether that is legal or not is a somewhat intricate question. Pursuing this yourself in Court will be crazy, especially against an experienced litigator like the County Counsel who is very familiar with the Court rules and rules of evidence. Be prepared to confront a blizzard of objections to your attempts to use uncitable cases like the Federal case you keep mentioning. You won't get any breaks because you are a lay attorney representing yourself.
I think the County can establish a duty as long as it doesn't cancel its own tort liability in the matter because that would be contrary to the Tort Claims Act.
If you really have a legitimate beef against the County's ordinance provision (which you may have) then you should get a group of property owners together to hire a Litigator experienced in this type of thing. You need a specialist which equals big dollars. If you prevail in Court then be ready to fight the County's appeal (I doubt they will take a loss in Superior Court without an appeal) which will be best handled by an appellate specialist.
I agree with your assessment. This County claims that SHC 5600-5630 gives them authority to transfer its duty, liability and responsibility on public sidewalks and parkway trees to adjacent property owners. Also Gonzales vs City of San Jose gives them this authority. I have this in writing. As you can see, the 1911 Improvement Act, SHC 5600-5630 intent by State Legislators was to get the Municipality paid back for the bond it posted, since it did not receive tax dollars from the towns business for this maintenance. Who owned out to the middle of the street in 1911? No housing tracts were created till 1945. The courts have ruled that SCH 5600-5630 does not give the Municipality the authority to transfer liability to adjacent property owners, not one case. So how is Ordinance 4355 legal? An experience attorney will cost 50-75K to take this to court, your correct. The County knows that people are not going to pay this cost, its not worth it for a $500 average sidewalk repair. People with parkway tree removal and sidewalks are $1500-$4000. That is what they are betting on. County Counsel, that Ive been dealing with, is not competent, is dishonest. I would love a chance in court, to go against him, he would lose. The only way to deal with this is to file myself in court, file injunctions, go in front of a State Superior Court, state my case, in a preliminary hearing. If the Judge believes this case has merit, go to trail, if not, its done. It will cost $420 to find out. If the Judge cites the State law, I win. If the Judge protects the County, I lose. The question is, do I get an honest Judge? Next, your correct. If the County loses, they will appear to the appellate court, to stall this case. Its will have to be based on merit, which it cant. IMHO, they will negotiate with me, remove my invoice, in exchange that the Ordinance stays, so they can bill everyone else. I want the invoice remove, Ordinance gone, pay back to all adjacent property owners for this abuse of power. I believe their negligence caused this problem, that I can prove. They cant pass this on to the adjacent property owner. That the Judge will have to rule on. We will see. Is it worth it financially to fight, with time and stress, answer is no. Is it worth it morally, yes. The truth matters, right is right, wrong is wrong.
Warren Smith, post: 404384, member: 9900 wrote: Barry,
Try to distinguish between ownership and control. The dedication of a public right of way is of control of that portion so designated on the map. To the extent many elements are maintained within that area, the local agency is the one which controls (by permit) appropriate use. Think of the public utilities contained within the right of way. Water, sanitary sewer, and storm drains are among them, along with power, communication and the like.
The pavement is maintained through the application of gas tax revenue. Sidewalks, particularly in unincorporated territory, are an amenity for the non-motorized use of local residents. Landscaping can also fall in this category, and is often paid for through an assessment district. These measures are to allocate maintenance to a neighborhood or community, rather than the residents of the County as a whole.
Should the need of the general public to travel a given stretch of public right of way be determined to be no longer necessary, vacation proceedings are held, a resolution adopted and recorded, and the public encumbrance is lifted. Adjacent landowners are then free from the right of the public to access the strip, and the underlying fee title ownership becomes what it always was - when created by a simultaneous creation known as a subdivision map - and no longer encumbered. The gross area is then assessed for tax purposes at that time, since control has reverted to the adjoining properties.
Your issue has more to do with proximate cause of the damage to the sidewalks, e.g. tree roots. Pursue that avenue, since maintenance of adjacent sidewalks under normal circumstances is a settled issue.
Hello Warren. I ownership, control and responsibility to maintain public property is the Municipality, through taxes. Public Utilities are not dedicated properties for public use. They own the lights, own the telephone poles, storm drains, sewer, etc. They cant delegate this duty and liability to adjacent property owners, nor can this Municipality. Cities all through the County maintain the sidewalks and parkway trees, its not given to the housing tract. Communities with association fees (ie Dos Vientos), are different. We dont have an association in our area.
County Counsel issue is that we own to the middle of the streets, regardless of deed, trust and property map. I disagree, can prove the public owns it, not an individual property owner. When this property is vacated, you are correct, the middle of the streets is owned by the adjacent property owner. Once a dedicated of property is approved, the middle of the street is owned by the public, for public use, paid for the public in gas taxes to maintain. You agree that gas taxes pay for street maintenance. So the Municipality owns out to the middle of the street, they own the streets, parkway and sidewalks, are responsible to maintain, after dedication is approved. This is Public property. I dont pay taxes to the middle of the street, as stated by the County, in letters. Why dont pay for this assessment is clear, I dont own public property. Also, my homeowners insurance does not insure out to the middle of the street, same purpose. Only when the street is abanden do things change. In my communities, its maintained by the County.
The key issue here is sidewalk repair and parkway trees. Who is responsible to maintain them and can a Municipality transfer liability, on its own property to adjacent property owner, with no consideration? the key question is ownership, who owns the parkway trees should maintain them. Also if its public property, its the Municipalities duty. Look at SHC 22060? Who takes out this parkway, by State law? Why is the Board of Supervisors? Why not the adjacent property owners, assigned in an Ordinance? Does a local general law county overrule a California Streets and Highways Code. According to State law, answer is no. IMHO, the Judge will look at several factors. Who ones the parkway and tree, tree roots. If the County owns it, its responsible and liable to maintain it, and its roots (Jones vs Deeter 1984, Long Beach). If their parkway tree roots were maintained in the past (CEO letter), then the adjacent property is not liable for this maintenance, it assumed the County maintains them. Since the County failed to maintain these roots, and the roots caused the damage to the sidewalks, the Municipality is responsible for the damage. If the trees were on private property, that is different. Depends on ownership and control. This is how I can the Court ruling, that the Ordinance is illegal, the entire Ordinance, based on the fact that the County owns the parkway trees, is responsible to maintain the roots, which it failed to do.
If you lose in court, is there a possibility that the County could sue you to recover their expenses defending against a frivolous lawsuit?
imaudigger, post: 404392, member: 7286 wrote: If you lose in court, is there a possibility that the County could sue you to recover their expenses defending against a frivolous lawsuit?
Its not frivolous, not close. The Ordinance is illegal.
Barry G, post: 404381, member: 12296 wrote: Hello Tom: Thank you for this information. What is the purpose, in a housing tract, for a Subdeveloper to give a dedication to the Municipality? Aftre the dedication is approved, the Road system goes from being private, owned by the developer, to the public, can we agree, the ownership becomes the public, easement is set into place for ingress and egress? After the dedication is approved by the Municipality, who assumes the affirmative duty of maintenance. Is it the adjacent property owners job to maintain the public road system, or is it the Municipality? Why do Municipalities pave roads very 25 years, if its the adjacent property owners duty and liability? We pay taxes to the government to pay for public property, (roads, parks, libraries, schools, etc). They are public property, owned by the public, maintained through taxes we pay, property tax, gas tax, sales tax, bonds,and many more.
When the road system is dedicated to the Municipalities, this public property is maintained by the Municipality, paid for in taxes, paid by the public. The public owns out to the middle of the street, not the adjacent property owner, based on this sign dedication. The Subdivision developer owns these private, streets out to the middle of the street. When its dedicate, its public property, not private property, the public owns it, maintained by the Municipality, in an easement. Who is responsible to maintain public property? Yes the taxpayer, through taxes. If the Municipality runs out of money, in its transportation, it can go back to the taxpayers and ask for more money, at the ballot box. It can create an Ordinance for additional tax dollars, while having 50M in reserve. In my Counties case, this is what they did, to avoid going to the taxpayers. If the Municipality abandons the public road system, then the adjacent property owners own out to the middle of the street. That is the law. What happens when the housing tract road system is not abandoned? Your correct, its own my the public, its not private property, as would be indicated in the deed, property map.
The Public has a right of way. A right to use the roadway. The fact that they own a right of way means that they have those rights. Therefore they have the control of the roadway improvements.
Barry G, post: 404388, member: 12296 wrote: I agree with your assessment. This County claims that SHC 5600-5630 gives them authority to transfer its duty, liability and responsibility on public sidewalks and parkway trees to adjacent property owners. Also Gonzales vs City of San Jose gives them this authority. I have this in writing. As you can see, the 1911 Improvement Act, SHC 5600-5630 intent by State Legislators was to get the Municipality paid back for the bond it posted, since it did not receive tax dollars from the towns business for this maintenance. Who owned out to the middle of the street in 1911? No housing tracts were created till 1945. The courts have ruled that SCH 5600-5630 does not give the Municipality the authority to transfer liability to adjacent property owners, not one case. So how is Ordinance 4355 legal? An experience attorney will cost 50-75K to take this to court, your correct. The County knows that people are not going to pay this cost, its not worth it for a $500 average sidewalk repair. People with parkway tree removal and sidewalks are $1500-$4000. That is what they are betting on. County Counsel, that Ive been dealing with, is not competent, is dishonest. I would love a chance in court, to go against him, he would lose. The only way to deal with this is to file myself in court, file injunctions, go in front of a State Superior Court, state my case, in a preliminary hearing. If the Judge believes this case has merit, go to trail, if not, its done. It will cost $420 to find out. If the Judge cites the State law, I win. If the Judge protects the County, I lose. The question is, do I get an honest Judge? Next, your correct. If the County loses, they will appear to the appellate court, to stall this case. Its will have to be based on merit, which it cant. IMHO, they will negotiate with me, remove my invoice, in exchange that the Ordinance stays, so they can bill everyone else. I want the invoice remove, Ordinance gone, pay back to all adjacent property owners for this abuse of power. I believe their negligence caused this problem, that I can prove. They cant pass this on to the adjacent property owner. That the Judge will have to rule on. We will see. Is it worth it financially to fight, with time and stress, answer is no. Is it worth it morally, yes. The truth matters, right is right, wrong is wrong.
My earlier analysis is slightly inaccurate. Iowa has a similar statutory scheme. The Iowa Supreme Court has said a duty of care ordinance is legal because it establishes an element of the tort, not a cause of action so such an ordinance does not conflict with their tort claims act.
Barry G, post: 404393, member: 12296 wrote: Its not frivolous, not close.
Tom Adams, post: 404398, member: 7285 wrote: The Public has a right of way. A right to use the roadway. The fact that they own a right of way means that they have those rights. Therefore they have the control of the roadway improvements.
Correct. They have control over the public streets, parkways and sidewalk, assume the affirmative duty to maintain, once they sign the dedication, with gas taxes. They cant assign away this duty, responsibility and liability on right of ways properties in dedicated housing tracts, in an Ordinance. Its public property, the public owns it, in an easement. The public is responsible to maintain the right of way. That is why we pay taxes to the government, for that purpose. They have no State authority to assign it back to an adjacent property owners, while collecting taxes for maintenance, see dedication.
Dave Karoly, post: 404407, member: 94 wrote: My earlier analysis is slightly inaccurate. Iowa has a similar statutory scheme. The Iowa Supreme Court has said a duty of care ordinance is legal because it establishes an element of the tort, not a cause of action so such an ordinance does not conflict with their tort claims act.
That might be in Iowa, not in California. SHC 5600-5630 does not give them this authority in California.
Barry G, post: 404409, member: 12296 wrote: Correct. They have control over the public streets, parkways and sidewalk, assume the affirmative duty to maintain, once they sign the dedication, with gas taxes. They cant assign away this duty, responsibility and liability on right of ways properties in dedicated housing tracts, in an Ordinance. Its public property, the public owns it, in an easement. The public is responsible to maintain the right of way. That is why we pay taxes to the government, for that purpose. They have no State authority to assign it back to an adjacent property owners, while collecting taxes for maintenance, see dedication.
They just don't own the underlying ground. It's a right-of-Passage. The public agency takes care of some of it, and they have whatever rules or regulations as to what their limited responsibility is. I am not arguing if you have a case on whether you can show that it was their negligence that caused damage to the sidewalk. Only about the fact that a right of way is an easement.
Barry G, post: 404391, member: 12296 wrote: Hello Warren. I ownership, control and responsibility to maintain public property is the Municipality, through taxes. Public Utilities are not dedicated properties for public use. They own the lights, own the telephone poles, storm drains, sewer, etc. They cant delegate this duty and liability to adjacent property owners, nor can this Municipality. Cities all through the County maintain the sidewalks and parkway trees, its not given to the housing tract. Communities with association fees (ie Dos Vientos), are different. We dont have an association in our area.
County Counsel issue is that we own to the middle of the streets, regardless of deed, trust and property map. I disagree, can prove the public owns it, not an individual property owner. When this property is vacated, you are correct, the middle of the streets is owned by the adjacent property owner. Once a dedicated of property is approved, the middle of the street is owned by the public, for public use, paid for the public in gas taxes to maintain. You agree that gas taxes pay for street maintenance. So the Municipality owns out to the middle of the street, they own the streets, parkway and sidewalks, are responsible to maintain, after dedication is approved. This is Public property. I dont pay taxes to the middle of the street, as stated by the County, in letters. Why dont pay for this assessment is clear, I dont own public property. Also, my homeowners insurance does not insure out to the middle of the street, same purpose. Only when the street is abanden do things change. In my communities, its maintained by the County.
The key issue here is sidewalk repair and parkway trees. Who is responsible to maintain them and can a Municipality transfer liability, on its own property to adjacent property owner, with no consideration? the key question is ownership, who owns the parkway trees should maintain them. Also if its public property, its the Municipalities duty. Look at SHC 22060? Who takes out this parkway, by State law? Why is the Board of Supervisors? Why not the adjacent property owners, assigned in an Ordinance? Does a local general law county overrule a California Streets and Highways Code. According to State law, answer is no. IMHO, the Judge will look at several factors. Who ones the parkway and tree, tree roots. If the County owns it, its responsible and liable to maintain it, and its roots (Jones vs Deeter 1984, Long Beach). If their parkway tree roots were maintained in the past (CEO letter), then the adjacent property is not liable for this maintenance, it assumed the County maintains them. Since the County failed to maintain these roots, and the roots caused the damage to the sidewalks, the Municipality is responsible for the damage. If the trees were on private property, that is different. Depends on ownership and control. This is how I can the Court ruling, that the Ordinance is illegal, the entire Ordinance, based on the fact that the County owns the parkway trees, is responsible to maintain the roots, which it failed to do.
Don't confuse accident liability with responsibility for maintenance, they aren't the same thing.
My research indicates the County can share liability by ordinance but it cannot transfer all liability to you. This is what the cases say to me.
Just to be clear, I'm not a lawyer so my opinions are my own. A superior court judge outranks me.
Barry G, post: 404410, member: 12296 wrote: That might be in Iowa, not in California. SHC 5600-5630 does not give them this authority in California.
I was using Iowa's case to understand the legal distinctions.
The California cases beginning with Schaefer imply they can establish a duty of care in you to the public. This does not cancel the County's own liability but at least they could share the cost of liability.
Barry,
Do you see a difference in the infrastructure on West Potrero Road, say, than the streets in your subdivision? The traveled way throughout the County is maintained for the motoring public on the paved surface, including striping, reflectors, signs, etc.
When your subdivision was approved for development, the developer entered into an agreement with the County to provide plans for construction of the public improvements. In denser zoning, standard plans are implemented, including sidewalks, parkways and more pedestrian friendly accoutrements for the benefit of the homeowners.
The duty of care by those residents who live alongside these additional improvements is higher than for those in a rural setting. The allocation of costs associated with maintenance of these features is equitably assigned to those who benefit directly. This is a large distinction between County developments and those within incorporated Cities. Newbury Park is alongside the City of Thousand Oaks, and is virtually indistinguishable. The cost of upkeep is subject to different approaches, as funding sources are disparate with respect to the two entities.
Tom Adams, post: 404411, member: 7285 wrote: They just don't own the underlying ground. It's a right-of-Passage. The public agency takes care of some of it, and they have whatever rules or regulations as to what their limited responsibility is. I am not arguing if you have a case on whether you can show that it was their negligence that caused damage to the sidewalk. Only about the fact that a right of way is an easement.
I understand. The public owns the underlying ground, out to the middle of the street, not an individual property owner. The Municipality has the duty to take care of it, since they signed the dedication and public property is governments responsibility, maintained through taxes. We are not arguing, we are having a conversation. Im trying to identify ownership, which I believe is important and the responsible party to maintain. I believe that the owners must take care of the dedicated public property (government), through taxes, period, as set up by our Constitution.
Barry G, post: 404418, member: 12296 wrote: I understand. The public owns the underlying ground, out to the middle of the street, not an individual property owner. The Municipality has the duty to take care of it, since they signed the dedication and public property is governments responsibility, maintained through taxes. We are not arguing, we are having a conversation. Im trying to identify ownership, which I believe is important and the responsible party to maintain. I believe that the owners must take care of the dedicated public property (government), through taxes, period, as set up by our Constitution.
No, the Public does not own the underlying ground. There is only a right of way across the underlying ground. The public has use of the ground because it is a right-of-way easement.
Tom Adams, post: 404419, member: 7285 wrote: No, the Public does not own the underlying ground. There is only a right of way across the underlying ground. The public has use of the ground because it is a right-of-way easement.
Hello Tom. Then who officially owns the Public street, Public parkway and Public sidewalks, adjacent to my home, after the County accepts the dedication of this property, to maintain? Its not the individual adjacent property owner. Someone has to own this property, identified in property map, deed and grant. I own 6" before the public sidewalk. That is why I say the Public owns it, its public land, maintained by the Government in tax dollars.
Barry G, post: 404423, member: 12296 wrote: Hello Tom. Then who officially owns the Public street, Public parkway and Public sidewalks, adjacent to my home, after the County accepts the dedication of this property, to maintain? Its not the individual adjacent property owner. Someone has to own this property, identified in property map, deed and grant. I own 6" before the public sidewalk. That is why I say the Public owns it, its public land, maintained by the Government in tax dollars.
You own fee simple absolute to the center of the street.
The public has a right of way EASEMENT over your property. Your title under the right of way is sometimes referred to as the naked fee.
This is a fundamental legal concept.
Ownership is not relevant for purposes of SHC5610 anyway.
Barry G, post: 404423, member: 12296 wrote: Hello Tom. Then who officially owns the Public street, Public parkway and Public sidewalks, adjacent to my home, after the County accepts the dedication of this property, to maintain? Its not the individual adjacent property owner. Someone has to own this property, identified in property map, deed and grant. I own 6" before the public sidewalk. That is why I say the Public owns it, its public land, maintained by the Government in tax dollars.
Dave answered you question better than I could. Just like the utility easement in back, the utility company will own their utility that they installed but not the ground around it. They don't have a "right-of-way" easement, They own a different type of easement for maintenance of their utility. The "public" has a right-of-way easement. The public taxes pay for the improvements on the right-of-way, but the public doesn't own the underlying ground. The easement is strictly for roadway purposes, and under that principle they can't use it for anything other than right of way (ie: as discussed they couldn't sell it or put a building on it or block the right of way)
