Dave Karoly, post: 405268, member: 94 wrote: I'm just giving the counter arguments here:
It is settled law in most of the U.S. that the easement owner is responsible to maintain its easement EXCEPT for sidewalks, parkways, and curbs. Most jurisdictions have statutes or ordinances that put that burden on the property owner. So you have to overcome that. The trees are part of the parkway so although the County owns them you still are responsible for maintenance by Statute.It is also settled law that the maintenance statutes and ordinances don't create a duty of care in the property owner to the public, the duty established is only one of maintenance to the City or County unless there is a clear and unambiguous statute or ordinance which creates such a duty of care. The City or County probably can't transfer all of its liability to you but they can create a duty of care in you to the public. The County's ordinance only establishes a duty of care but it does not cancel the County's liability to the general public. Someone who trips can still make a claim with the County, if the County denies the claim then they can sue the County. They can also sue you under the Ordinance. The Courts have implied a duty of care ordinance is legal but it hasn't been directly tested in an Appellate Court as far as I know.
It is undisputed tree is owned and maintained by the County, and it is undisputed that the County's tree damaged the sidewalk. These facts would normally place responsibility on the Tree's owner to repair the damage, however, the Legislature has authorized the County to collect the cost of repairing damage from the abutting property owner. Policy supports this because the abutting property owner is the prime beneficiary of the trees for which they receive free maintenance. The legislature has seen fit to allow the County to collect the cost of maintenance of the County's curbs, parkway (of which the tree is a part), and sidewalks from the abutting property owners (who can elect to do the work themselves) and the Court has no authority to ignore the Statute unless it is unconstitutional or somehow does not apply to the circumstances in the case.
The statement that the owner is normally responsible is true but in this case the Legislature has clearly made an exception to that. The argument that the Statute only applies to urban business districts is unsupportable because the Statute itself does not say that, in fact, it defines City as meaning City or County which by itself indicates the Statute applies outside of Cities.
It is understood that some Cities pay for the cost of the repairs to sidewalks out of their general tax revenue. They are not required to do this however, and many Cities in this State do charge the cost of repairs to the adjoining property owners.
-Break-
Granted:
1. You may be able to make some headway on the tree damage just due to simple fairness. If the County didn't take steps to prevent damage such as cutting roots, or root barriers then they may be responsible for those specific repairs.
2. Was the sidewalk repaired and restored to its original state or was it upgraded to current construction standards? You may be able to get the invoice reduced arguing that the Statute requires repair, not upgrades to current construction standards. If the original sidewalk was 3" thick on dirt but the County is charging you for 6" of concrete on 6" of aggregate base on compacted subgrade then that is beyond the scope of a repair. I think a repair means you have to restore the 3" thick sidewalk to a safe condition. I would think you could make more headway on that, and it seems like you are being reasonable in wanting to comply with the law, rather than trying to stick the taxpayers with all of your obligations.Disclaimer: I'm not a lawyer and none of this is intended to be legal advice.[/QUOTE
Dave, I agree 100% with your counter arguments. I believe SHC 5600-5630 was written, in 1911, with the assumption that, California Code 831 (1872), the adjacent property owner owns the underlying fee to the middle of the street, unless otherwise proven. I believe the courts decide that since the adjacent property owners own the underlying fee, they are responsible for the parkway trees and sidewalks, as written 5600-5630. Since the County, by Ordinance 2041,written in 1968, has decided to state that everything on the parkway is government property, the intent changes, the government wants full control, possession, title and fee to parkway trees. Therefore, it allows them to make all the decisions to their tree, permitting, trimming, controlling, possession, etc. The adjacent property owners have no voice, no decisions regarding this parkway tree, its all Ventura Counties control. Im not allowed to remove this tree, cut the roots, do anything on the parkway, without County approval. Since they make all the decisions, decisions come with liability and consequences. When they decide to permit the trees, allow the roots to grow under the sidewalk, there is liability. When they fail to put in root barriers, at any time, over the past 50 years, there is liability. When they fail to protect the sidewalks from the damage of a government tree, there is liability. They cant accept that its their property, by Ordinance, then transfer all liability of the property, when it damages another property. That is like an adjacent property owners accepts his trees on his property, its private property. When my tree roots grow under the government sidewalks and damage it, the government comes after me, since I have liability for not maintaining my tree roots on my property. I agree 100 with this, since I have control over my tree roots on my property. Its my liability, when my tree roots destroy public property. All Courts would rule against me. I cant subdelegate my failure to maintain this tree, nor can I pass on this liability, to my neighbor or the government. I have control over my land, Im responsible. Lets change my tree on my property to a government tree. Same should apply, the law equally applied. I dont know if it was upgraded to 2016 standards, good question. My issue is clear. Who caused the sidewalks to go out of repair, adjacent property owner or government? it depends, whos property caused this damage, IMHO. I dont want to stick this cost to taxpayers. We have a 50M reserve in the transportation fund to repair this. It cost less than 25K to repair all sidewalks and parkway trees in our community. Why not spend this out of the 50M reserve, what is the issue?
Tom Adams, post: 405269, member: 7285 wrote: [USER=12296]@Barry G[/USER]
I get your argument, but I just empathize with the county more. They are taking on the lion's share of the upkeep, and they did not get to input in the way the sidewalks were built unless they simply made sure they were to code. To me, the big bad boogeymen are land developers and not government agencies. Government agencies have much less incentive to cut corners than they guys making the big bucks. By "accepting" the right-of-way dedication only brings them liability and a larger work burden. It doesn't make them money. It's for the benifit of the subdivision community. Maybe you're technically right, and maybe the county should be taking care of all the sidewalks in their counties, but I don't know. But I would imagine that would take a much larger staff and higher taxes if you could possibly win.I live in a county, and all I got was a dirt road and no sidewalk; and I'm sure my taxes are paying for the upkeep of the asphalt in other subdivisions. Personaly I would pick my battles more carefully. I am envisioning this being an expensive battle for you.
I agree with you. I believe that County should have done its job, by not permitting large trees on a 4' parkway. They should have some consequences for bad decisions. I pay taxes for their experience and expertise. I believe, once this County was aware of the problems this has caused, should have found a good solution, like taking out the roots, root barriers, repairing the sidewalks in the 1970-80s, so no one gets hurt. Its a safety issue. It decided to ignore the problem, let the roots continue to grow, lift up the sidewalks, crack them, at angles of 20-45% degrees. There solution was to asphalt the areas that were lifted, do nothing to the root system or place a root barrier in the parkway. They were aware of this issue in the 1980s, I have letters informing them of this problem. Government solution is to ignore the problem, then, in 2006, after people sue them, pay them off, create an Ordinance, transferring duties, responsibilities and liabilities to adjacent property owners, citing 5600-5630 as their authority. they did not do this because of their Ordinance 2041, its government property. They believed no one would find out about this Ordinance 2041, no one will pay 75K on an attorney to fight this in court. After all, its on average $600 to repair government property, some less, some more, depending on parkway tree removal. There solution was to ignore their responsibilities, tell people on letters that we own parkway trees and sidewalks are on our property, we must repair them, and pay for this repair. We dont own the parkway trees, nor are the sidewalks on our property lines. So they lie, no accountability or consequences for their intentional deception. If Im told that I own this property, I can understand I should pay for maintenance. If its the truth, I agree, I should pay. When they intentionally lie to me and my community, I have a major issue. The purpose of this lie is to get people to pay, without a challenge. Governments have a code of ethics, that they failed. Again, no one is accountable for lies, its all covered up and protected, by Board of Supervisors and CEO. Lying, to get someone to pay, is an acceptable practice, in this case, for this local government. After all, why not lie, there are no consequences for lying its actually promoted, an attribute to lie, to save the government from expenditures. This goes towards County Counsel, Dept of Transportation and Public Works, all protected by the CEO and Board of Supervisors. Lies are rewarded, with no consequences. That is why over 90% don't trust government, based on this example. The regular employees in my county are great people, its the higher ups that are irresponsible, based on this example. County Counsel knows their Ordinances is illegal, since I have presented these arguments, he cant dispute. He knows we dont have 75K to pay for an attorney, for a $600 sidewalk repair, so no one will fight them, financially, its not worth it. That is why this Ordinance wont be challenged and they know it. Its stays on the books, becomes law, so other General Law Counties can hose the Unincorporated Areas in their community.
Barry G, post: 405287, member: 12296 wrote: I agree with you. I believe that County should have done its job, by not permitting large trees on a 4' parkway. They should have some consequences for bad decisions. I pay taxes for their experience and expertise. I believe, once this County was aware of the problems this has caused, should have found a good solution, like taking out the roots, root barriers, repairing the sidewalks in the 1970-80s, so no one gets hurt. Its a safety issue.
I have trouble thinking it's the county's responsibility to design the trees and sidewalks, unless there is some building code. I still blame the land developer more than the County. It's the developer that is profiting from this design. If everything was built to code at the time, how can you expect the County to micromanage the more fine details.
Tom Adams, post: 405290, member: 7285 wrote: I have trouble thinking it's the county's responsibility to design the trees and sidewalks, unless there is some building code. I still blame the land developer more than the County. It's the developer that is profiting from this design. If everything was built to code at the time, how can you expect the County to micromanage the more fine details.
I believe the developer had nothing to do with the planting and permitting of the parkway trees and design of sidewalks. I blame 100% the county for permitting these trees, not placing root barriers and not trimming roots, as per Ordinance. They have possession and full control over these government parkway trees, per Ordinance, they had responsibility to maintain the roots, ignored these requirements, transferred liability to adjacent property owner for these failures. They want me accountable for ignoring this problem, I find offensive, immoral and illegal.
I believe a land developer typically designs and builds a subdivision with the primary goal of attracting buyers. I would highly doubt that a County would take on the work of building sidewalks. I don't know about the Parkway part and who planted the trees but I have typically seen developers do the landscaping of the subdivision. (I don't know what your "parkway" is, though.
Tom Adams, post: 405328, member: 7285 wrote: I believe a land developer typically designs and builds a subdivision with the primary goal of attracting buyers. I would highly doubt that a County would take on the work of building sidewalks. I don't know about the Parkway part and who planted the trees but I have typically seen developers do the landscaping of the subdivision. (I don't know what your "parkway" is, though.
I had a nice talk with people on my block (Harry and Chaire), who are original owners in our housing tract. They told me the neighbors came together, hired one contractor to put on the parkway trees, all liquid amber trees on the entire block. 99% of this community planted this same tree. This Contractor had to get a permit for the trees on the parkway. So it was not the developer that planted the tree, its was a hired Contractor. So I dont hold the Contractor accountable, I hold the person granted the permit responsible. When the country tree roots started destroying the sidewalk, I blame the Dept of Transportation for not trimming the roots, putting in a root barrier, or replacing this tree, with a tree that does not cause sidewalk damage. Its on the Department of Transportation, for the lack of duty to maintain government property. County Counsel solved that problem, by creating Ordinance 4344, making adjacent property owners accountable to Department of Transportation failures. Its the same person who wrote of letters, stating that the parkway trees were our property and that the sidewalk were on our property. I have the letters. Board of Supervisors were told that we own the parkway trees, sidewalks are on our property, so of course, this Ordinance is legal. When they are told that this information is false, they cover-up for Dept of Transportation's failures to maintain this property and deceiving the public with false information, informing us to prove it in court, knowing the financial burden to take this to court is not worth it. They lack morals and integrity, its what is wrong with government today, this example, no accountability or consequences for failures to perform and be truthful.
Yeah, County employees are out to get you. They hire them based on their lack of honesty, morals, and integrity.
I predict you are going to lose this battle and will have even more to rant about when you do. Good luck with that.
Tom Adams, post: 405338, member: 7285 wrote: Yeah, County employees are out to get you. They hire them based on their lack of honesty, morals, and integrity.
I predict you are going to lose this battle and will have even more to rant about when you do. Good luck with that.
County employees that I deal with are great. The lower level people are very helpful, are very knowledgable and respectful. Please don't put works in my mouth. I have friends who work at the County, are good people. Its the people who lie, I have a problem with, the people who dont perform their jobs. I have no issues with Dept of Transportation workers, Public Works, Clerks, etc, They do what they are ordered. Its not Dept of Transportation employees fault, their Director failed to have them maintain the public parkway trees in my community, or permit the property trees on the parkway. The employees would do the work, not charge the residence. I have no issue with subordinates, they do their job. Its the overpaid directors I have a problem with, people who have lied on paper and in meetings, same with County Counsel, including Board Members. You have this all wrong.
So the land owners in the housing tract collectively paid a contractor to construct trees within the public right of way (presumably under an encroachment permit). These trees obviously were seen as something that would benefit each individual land owner at some time in the future. Each land owner more than likely watered and cared for the trees adjacent to their homes.
SIDE NOTE: I would want to read the terms and conditions of that encroachment permit, as there is probably some sort of indemnity language included.
Flash forward 40+ years...Most of the original owners have moved away or died. The trees are now mature and the current land owners are finally realizing the full benefit of the parkway trees. The downside is that the trees are now causing damage to the sidewalks (who's primary purpose is also to benefit the current owners).
The current owners are now unhappy about being held liable to pay for their proportional share of the resulting damage to the sidewalks despite the benefit they receive from both the trees, as well as the sidewalk.
As someone who pays gas taxes, I do not see how this should be any of my responsibility.
I have already posted too much. I will suggest that if you were to re-write all your points without the words "should" or "believe" or "lied" or "wrong" you will have a more convincing basis for an agreement -- not an argument -- with the county.
Around here, for a modern subdivision, the construction of sidewalks, curb & gutter and parkway trees would be part of the conditions of approval for the subdivision and the cost would be borne by the developer.
roger_LS, post: 405347, member: 11550 wrote: Around here, for a modern subdivision, the construction of sidewalks, curb & gutter and parkway trees would be part of the conditions of approval for the subdivision and the cost would be borne by the developer.
Apparently in this subdivision the land owners got together and planted the trees as a neighborhood project (probably under the conditions of an encroachment permit)...The fact that the trees were planted in the right of way via. a permit kind of changes the entire situation in my mind.
imaudigger, post: 405344, member: 7286 wrote: So the land owners in the housing tract collectively paid a contractor to construct trees within the public right of way (presumably under an encroachment permit). These trees obviously were seen as something that would benefit each individual land owner at some time in the future. Each land owner more than likely watered and cared for the trees adjacent to their homes.
SIDE NOTE: I would want to read the terms and conditions of that encroachment permit, as there is probably some sort of indemnity language included.
Flash forward 40+ years...Most of the original owners have moved away or died. The trees are now mature and the current land owners are finally realizing the full benefit of the parkway trees. The downside is that the trees are now causing damage to the sidewalks (who's primary purpose is also to benefit the current owners).
The current owners are now unhappy about being held liable to pay for their proportional share of the resulting damage to the sidewalks despite the benefit they receive from both the trees, as well as the sidewalk.
As someone who pays gas taxes, I do not see how this should be any of my responsibility.
Where can I find a copy of the encroachment permit to housing tract 1116-1, in 1961? Would this be in the planning department, records department?
You are correct in your analysis. The trees are great, for shade for the lawn (water use), keep you cool, provide oxygen to all, good for the entire community. They are great in the Unincorporated Areas and Cities, Counties, etc. Everyone benefits from the trees, the collective benefit, not one person. Public property is benefited by all, paid for in taxes (property taxes, gas taxes) for maintenance. We pay 97 forms of taxes, are over taxed for public property. We watered the parkway trees and grass, mowed the lawns, etc. So we paid to this maintenance. The maintenance of the parkway trees, by State law is the Muniicipality, trimming branches, roots, etc. SHC 22060 informs the board of Supervisors, its responsibilities for parkway trees. Again, we pay taxes for this maintenance, its no free. I contracts the Controller in California. He gave me the budgets for California, money is earmarked to all Counties for parkway trees and sidewalks, in housing communities. Yes its in the budgets, sent by Sacramento. When they tell you there is no money for maintenance of the rights of ways, that is not the truth, according to the State Controller. You are correct, only a small amount of people are alive in my community, who to are original owners. My neighbors down the street, original owners are 90. They made the decisions 55 years ago, on parkway trees. Its not their fault, they are not experts on this subject. The County permit department should have expertise on parkway trees, what to plant on a 4' wide parkway. Do you think today, they would allow these trees on the parkway, without as root barrier? Answer is no. The solution 30 plus years ago is to trim the roots, put in a barrier, problem solved. Instead, County solution is to ignore the problem, allow people to get hurt, sue the county, give them 50K for their silence. This is the solution, live the roots alone, let them continue to destroy the sidewalks. Then in 2006, transfer all duties, responsibilities and liabilities from County to adjacent property owners, problem solved for the County. Take tax dollars for maintenance for 50 years from the property owners, then, when property is out of repair, charge them again, charge them twice for the identical repair, of the same property. So they can continue to collect tax dollars from me today, while also billing me $3000 to remove the trees and repair the sidewalks. What a great deal, for them. Its like an insurance policy. Pay me ex amount of dollars for car insurance, for ex amount of years. When you get into an accident, then I charge you 100% for the repair. Then, I get to have you keep a liability, for the damage you do on another's property. When can I start this business? Its not allowed, its illegal to charge someone twice for the same repair transfer liability to someone else, who is paying for this liability coverage. This County has no issue with charging twice., transferring their liability, on their property, to me. Only governments that abuse their power get away with this, with no accountable or consequences.
roger_LS, post: 405347, member: 11550 wrote: Around here, for a modern subdivision, the construction of sidewalks, curb & gutter and parkway trees would be part of the conditions of approval for the subdivision and the cost would be borne by the developer.
If the Municipality states that the parkway trees are the property of the Municipality, who would be responsible to maintain the parkway trees and roots? Today, the permit department is smart enough to not allow large parkway trees on 4' wide parkways to be planted. Parkway trees are still controlled by the Municipality, permits, branch removal, removing dead and diseased trees, dangerous trees, etc. When they have control and possession, its hard to hold the adjacent property owner responsible to maintain the roots of the tree, especially if they grow under ground. We cant touch that root, cant trim it, only the Municipality can perform this function.
imaudigger, post: 405348, member: 7286 wrote: Apparently in this subdivision the land owners got together and planted the trees as a neighborhood project (probably under the conditions of an encroachment permit)...The fact that the trees were planted in the right of way via. a permit kind of changes the entire situation in my mind.
How would this change your mind?
half bubble, post: 405346, member: 175 wrote: I have already posted too much. I will suggest that if you were to re-write all your points without the words "should" or "believe" or "lied" or "wrong" you will have a more convincing basis for an agreement -- not an argument -- with the county.
Your correct. I should not use these words, less judgment, stay with the facts and evidence. Turn off the emotional side, keep the right side of the brain, CPU going.
So you think Harry and Chaire obtained an encroachment permit, hired a contractor to plant a tree in front of their house, cared for the tree for decades, all for the benefit of society in general...to provide oxygen for people to breath?
I think as a result of our litigious society, government has developed volumes of standards. 40-50 years ago, this simply was not an issue. People were just happy to have a tree, some grass and a sidewalk in front of their homes instead of having to park in a mud puddle or the broiling sun.
Generally, the Public Works department issues encroachment permits to people that request to construct things within the public right of way. The permit is usually subject to some general provisions....permittee is advised to determine ownership of the real property involved and obtain written permission from the owner.....all work shall conform to recognized standards of construction....permittee is responsible for all liability for personal injury or property damage which may arise out of work herein permitted, or which may arise out of a failure on the part of a permittee's part. to perform his obligations under this permit in respect to maintenance...in the event any claim or such liability is made against county, permittee shall defend and hold harmless and indemnify...If the county shall so elect, repairs hall be performed by county and permittee billed....the permitted agrees to exercise reasonable care to maintain properly this encroachment...ect. ect.
Have a good night.
The encroachment permit should have been issued by the Public Works Agency. imaudigger is right, the standard terms and conditions should address these concerns.
This is sensible from the point of view of the agency charged with administering components within the right of way. When additional facilities are allowed to be placed, that privilege comes with obligations.
The primary duty of the County is to maintain a travel way for the general public to access, including emergency vehicles. Funding is allocated according to a formula for the network of roads. These are classified according to a system of average traffic volume, vehicle weight, and speed.
imaudigger, post: 405355, member: 7286 wrote: So you think Harry and Chaire obtained an encroachment permit, hired a contractor to plant a tree in front of their house, cared for the tree for decades, all for the benefit of society in general...to provide oxygen for people to breath?
I think as a result of our litigious society, government has developed volumes of standards. 40-50 years ago, this simply was not an issue. People were just happy to have a tree, some grass and a sidewalk in front of their homes instead of having to park in a mud puddle or the broiling sun.
Generally, the Public Works department issues encroachment permits to people that request to construct things within the public right of way. The permit is usually subject to some general provisions....permittee is advised to determine ownership of the real property involved and obtain written permission from the owner.....all work shall conform to recognized standards of construction....permittee is responsible for all liability for personal injury or property damage which may arise out of work herein permitted, or which may arise out of a failure on the part of a permittee's part. to perform his obligations under this permit in respect to maintenance...in the event any claim or such liability is made against county, permittee shall defend and hold harmless and indemnify...If the county shall so elect, repairs hall be performed by county and permittee billed....the permitted agrees to exercise reasonable care to maintain properly this encroachment...ect. ect.
Have a good night.
They planted this for their benefit, like everyone else, at that time.
I will go the Pubic Works and request this encroachment permit, back in 1961. Will this decide ownership and maintenance of parkway trees, who is responsible and liable? So this is an important document, if it can be found. In 1961, the parkway trees were not an issue. Only when they grew, the roots grew under the sidewalks and messed them up, is the issue. Will the encroachment permit address issues like planting, root barrier, etc?
Warren Smith, post: 405356, member: 9900 wrote: The encroachment permit should have been issued by the Public Works Agency. imaudigger is right, the standard terms and conditions should address these concerns.
This is sensible from the point of view of the agency charged with administering components within the right of way. When additional facilities are allowed to be placed, that privilege comes with obligations.
The primary duty of the County is to maintain a travel way for the general public to access, including emergency vehicles. Funding is allocated according to a formula for the network of roads. These are classified according to a system of average traffic volume, vehicle weight, and speed.
Would they have these records online, or in files or microfiche at the Public Works Dept? I was there yesterday, did not ask them for Encroachment Permits.
