Encroachments and Revocable Licenses
In August 2014, I wrote a City Manager's Blog on some of the laws currently enforced in Town and areas where the Town would be tightening up the standards and requirements. You can read the article here. The title of the blog was called, “It’s the law, or rather, it soon may be…”
Part of the blog talked about encroachments within the Town’s public right-of-way - adjacent to the public roadway. The public right-of-way is that stretch of land between your front property line (typically a fence or gate along your frontage) to the edge of the public roadway pavement. The Town, via local laws and standards, controls how that area can be improved by private parties. You can view the visual of street-fronting landscape and fence improvements here.
…within the first 3 feet from the edge of the roadway:
- no above grade structures are allowed
- no landscaping over 5 inches in height
- no logs, curbs, rocks or similar obstructions
…from 3 feet to 6 feet from the edge of the roadway:
- no above grade structures are allowed
- no landscaping over 3 feet in height
- no logs, curbs, rocks or similar obstructions
…after 6 feet to the property line:
- trees and shrubs are permitted so long as they are not a safety hazard
- keypads and intercoms are permitted
- decorative fencing, pedestals, irrigation and other improvements are permitted
…a visibility triangle is required to be free of obstruction:
- the visibility triangle is formed by intersecting the edge of the roadway back 30 feet from the corner to form a triangle. Improvements are limited to 3 feet in height in these areas
…mailboxes are permitted within the right-of-way and closer than 6 feet to the roadway edge if required to meet postal regulations.
The above is current law and is not proposed for change.
In addition, current law provides:
- a permit is not required for minor maintenance in the right of way that does not alter any drainage patterns; are de minimus modifications of existing improvements consistent with current law; and mailboxes.
- A permit is not required for keypads and intercoms that are installed in conjunction with a building permit and meet the requirements of current law.
Under current law, encroachments within the public right-of-way must:
- not interfere with any Town facility or use thereof and not be detrimental to the interests of the Town.
- Every permit issued is revocable at the sole discretion of the Town.
- Any property owner that installs anything in the Town’s right-of-way must, without limitation, defend, indemnify and hold the Town, its officers, agents and employees free and harmless from any and all claims of any nature, including claims for liability for personal injury or property damage arising from the construction, operation and maintenance of the encroachment, and further that the encroachment will be removed promptly upon the request of the Town at the sole cost and expense of the property owner.
This is all current law (pre-1999) and not being proposed for change. These requirements and provisions are codified in Chapter 12.06 of the Atherton Municipal Code.
So What's Changing?
The Town has an interest in protecting the safety of pedestrians, bicyclists, and drivers. Over the years, the Town has, by way of lack of enforcement, allowed improvements within the right-of-way that exceed the current standards. Some of these improvements represent clear threats to the health, safety, and welfare of residents. Property owners have built private improvements within the right-of-way that can impact the safe passage of pedestrians, cyclists, and drivers should they need safe harbor along the edge of the road. Some property owners have installed impervious surfaces that impede drainage and cause issues on neighboring properties. Some residents have planted trees that now interfere with signage, visibility, and/or safe passage along the roadway. The width of the right-of-way will vary from roadway to roadway. The types of improvements vary as well.
The goal of the revisions is to tighten-up the enforcement of the current requirements and ensure a clear understanding between the Town and adjacent property owner with respect to liability of private improvements within that right-of-way. At first glance, the photos above appear fine. But, in one case, the property owner has dropped posts into the ground to prevent parking along their frontage within 3-4 feet of the roadway and the other has placed rocks within 4-5 feet of the edge of pavement. Both in violation of current law. At night, these are hazards for passersby on foot, by bicycle, and by car. There is only limited safe harbor along the edge of the roadway. Everything else - appears perfectly fine. We would ask the property owners to move the rocks and posts back to the 6 foot mark and permit everything else with a revocable license.
The Town is not seeking to have improvements removed unless they clearly violate the existing law and/or clearly are a matter of public safety. For example, if there are rocks, logs, or other similar obstructions within the first 6 feet, we will ask the property owner to move them back to the 6 foot mark for compliance. If the property owner has built structures within the first 6 feet – we will ask the property owner to move them back.
For structures, trees, fencing, or other private improvements over 3 feet behind the 6 foot mark, we will require the property owner to document those improvements via a Revocable License. In essence, for all improvements that currently exist that are intended to remain, the Town will require the property owner to execute a Revocable License (here's a sample) that documents those improvements and creates a clear understanding of the transfer of risk, maintenance, and liability (all current law). The Revocable License runs with property ownership and will be recorded with the County of San Mateo. If the property changes hands, the new property owner will know that the improvements within the Town’s right-of-way in front of their property are permitted via the Revocable License and that they, as the new property owner, have assumed the risk, maintenance, and liability.
From an enforcement perspective, the Town will prioritize those areas of Town to be addressed first. These will include areas where there is significant active code enforcement, new construction, and areas where the Town will be improving bicycle and pedestrian pathways.
The Town wants property owners to beautify the area between their front property line fence and the public roadway. The current standards, which are not changing, will continue to encourage that development. The only change is the formality of the Revocable License and a more consistent approach to regulation.
The Town will be engaging in a public workshop to educate the community about the current laws and the changes (revocable license). After the public workshop and adoption of the changes to the ordinance, the Town will begin a proactive enforcement program addressing the established priority areas first. It has been recommended that an amortization period be provided for property owners with clear violations of current law and a period of time where property owners can obtain a Revocable License without cost. After that period expires, the cost of a Revocable License will be the staff time required to review and process the License and the cost of recordation. It is anticipated that this total cost will be less than $300.
I am happy to answer any questions you might have about the issues discussed above - my door is always open, I answer email promptly, and always return phone calls.
Thanks for reading!
George
George Rodericks
City Manager
Town of Atherton
grodericks@ci.atherton.ca.us
(650) 752-0504