MEMORANDUM SUBJECT: CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT

MEMORANDUM TO: FROM: CITY COUNCIL GEOFF ENGLISH, PUBLIC WORKS DIRECTOR SUBJECT: CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT DATE: APRIL 11, 2017 RECOMMENDATION: It s recommended the Cty Counc receve and provde comments and drecton on the Sdewak Infrastructure Assessment and Repacement Report and suggested pocy modfcatons reated to the Cty s sdewak nfrastructure. IMPACT ON FINANCIAL AND PERSONNEL RESOURCES: No fnanca mpact at ths tme. Informaton assembed n ths report w assst n prortzng fundng requests for the deveopment of future budget recommendatons. The estmated cost to repar a sdewak defects foowng the assessment competed by the Pubc Works staff n the summer of 2016 was $1,346,250. The Fsca Year 2017-18 Capta Improvement budget has $100,000 proposed for East Grand Avenue sdewak repar, pus $60,000 for genera sdewak repar work. BACKGROUND: Durng the deveopment of the Fsca Year 2015-2017 Benna Budget, the Pubc Works Department submtted a budget request for $25,000 from the Cty s Saes Tax Fund to cover the cost for unspecfed equpment and nfrastructure repacement and repars for a varety of genera fund supported nfrastructure such as parks, government budng and ADA mprovements. At the speca Cty Counc Budget hearng for Capta Improvement Projects and Non-Genera Fund Programs hed on May 12, 2015, the Counc decned the unspecfed budget ne tem requests and drected Cty staff to return wth budget requests for defned projects n future budget cyces. In addton, the Cty Counc decned the fundng of smar unspecfed equpment and nfrastructure repacement and repar budget requests. As a resut of ths drecton, an effort was ntated to nventory and assess the condton of the Cty s Genera Fund supported nfrastructure and assets n the foowng genera categores: Parks, Landscapng and Open Space Sdewaks and Pedestran brdges Government Budngs Roads Dranage Factes Brdges Item 12.a. - Page 1

CITY COUNCIL CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT APRIL 11, 2017 PAGE 2 The Cty Counc determned that Supportng Cty Infrastructure was one of the top eght (8) goas estabshed durng the Goa Settng Workshop on Juy 18, 2016. Prevousy, staff presented to the Counc nfrastructure assessment reports for Government Budngs, Dranage factes, Roads and the Cty s Parks, Landscapng and Open Space system. The foowng are genera fndngs of the four prevous nfrastructure assessment reports: Cty s Parks, Landscapng and Open Space system: Approxmate vaue of exstng nfrastructure and mprovements: $ 4,900,000 Approxmate annua deprecatons and repacement costs: $ 210,000 Government Budngs: Approxmate vaue of exstng nfrastructure and mprovements: $ 4,700,000 Approxmate annua deprecatons and repacement costs: $ 121,000 Dranage factes: Approxmate vaue of exstng nfrastructure and mprovements: $ 32,200,00 Approxmate annua deprecatons and repacement costs: $ 238,000 Roads: Approxmate vaue of exstng nfrastructure and mprovements: $180,000,000 Approxmate annua deprecatons and repacement costs: $ 3,023,000 Ths s the ffth Cty nfrastructure assessment report and fetme repacement schedue presented to the Cty Counc n ths seres. The fna report on the condton of the Cty s brdges w be presented to the Counc at a future date. ANALYSIS OF ISSUES: The Cty of Arroyo Grande has approxmatey 88 mes of sdewaks n the pubc rght of way. Sdewaks have hstorcay been mantaned by the Cty usng severa repar technques ncudng remove and repace, concrete grndng and concrete scng. Resdents have perodcay been requred to repar or repace a sdewak segment that was damaged as a resut of a prvatey owned and mantaned tree. Sdewak repar and repacement resutng from genera decay or deteroraton has generay been competed by the Cty. Cty ntated repars are competed usng Cty crews or by utzaton of a prvate genera engneerng contractor. Accordng to the Federa Hghway Admnstraton (FHWA), sdewaks requre reguar mantenance to reduce the damage caused by the effects of weather and use over tme, and accordng to FHWA have a usefu fe cyce of 80 years before compete repacement s necessary. Ths usefu fe cyce s based on norma weatherng and deteroraton over tme and does not ncude repars that are requred as a resut of damage from tree roots, whch s the prmary cause of damage to Arroyo Grande sdewaks. In preparaton for ths report, the Pubc Works Department competed a comprehensve fed nspecton of a sdewak segments n the Cty. Teams of two empoyees waked a streets n the Cty and measured a exstng sdewak devatons, Item 12.a. - Page 2

CITY COUNCIL CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT APRIL 11, 2017 PAGE 3 and determned the repacement area necessary for the repar. A sampe st of the sdewak dspacement ocatons s attached (Attachment 1) aong wth a map that shows the hot spots of sdewak damage throughout the Cty usng a densty anayss process (Attachment 2). For the purposes of assessng tota vaue and asset repacement costs, Pubc Works staff aso determned the tota amount of concrete sdewak wthn the pubc rght of way as detaed beow. ASSET REPLACEMENT COSTS Staff determned the tota quantty of sdewak n Arroyo Grande to be approxmatey 88 mes and approxmatey 2,327,500 square feet of sdewak surface area based on an average sdewak wdth of approxmatey fve (5) foot. Beow are asset repacement statstcs based on a usefu fetme of 100 years for concrete sdewak. Lnear Feet of Exstng sdewak 465,500 LF Square Feet of Exstng sdewak 2,327,500 SF Tota Repacement cost for a Exstng sdewak $ 34,912,500 (based on a repacement cost of $15 per SF) Annua Deprecaton set-asde (based on 100 year fe) $ 232,750 per year As was presented n the prevous nfrastructure reports, the tota repacement cost (vauaton) and the annua deprecaton for a the sdewaks s provded for prospectvey n comparson to the Cty s other unfunded abtes and future needs. Ths nformaton can aso be used comparatvey by the Cty Counc when determnng fundng requrements for a Genera Fund reated abtes, ncudng other asset repacement needs. The fed assessment of the condton of the Cty s exstng sdewaks by Cty staff determned the amount of exstng damage to a sdewak segments usng a fed survey that coected the foowng nformaton: Item 12.a. - Page 3

CITY COUNCIL CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT APRIL 11, 2017 PAGE 4 Based on ths assessment and a cacuaton of the per square foot repar costs, the foowng cost estmates were determned and dvded nto three categores of dspacement: Usng the nformaton gathered, durng the sdewak condton fed evauaton, Capta Improvement Projects of prortzed sdewak repars w be deveoped for consderaton n the up-comng and future budget adopton processes. Severa factors are used durng the prortzaton of sdewak repar needs ncudng, but not mted to the foowng; Sze and severty of the sdewak dspacement Hgh pedestran traffc areas Schoo zones and Cty factes Compants & Trp and Fa hstores Geographc groupng for cost effectveness The future responsbty for sdewak repar may aso be addressed through pocy consderatons. Foowng are three potenta pocy changes for consderaton by the Cty Counc that may reduce the Cty s future sdewak repar costs and abty: 1. Prepare a Sdewak Master Pan and Estabsh Sdewak In-eu Fees: Such a pan coud be used to gude future nstaaton of sdewaks n the Cty. Instaaton of frontage mprovements ncudng sdewaks aong the entre property frontage s currenty requred as a condton for budng permts for a Zonng Dstrcts except for Agrcuture, Resdenta Estates, Resdenta Hsde and Resdenta Rura zonng dstrcts. A map showng the current ocatons of sdewaks n Arroyo Grande s attached. (Attachment 3) Arroyo Grande Muncpa Code Subsecton 16.68.020(F)(2) provdes gudance on the requrement for the nstaaton of sdewaks upon appcaton for a budng permt. Except as otherwse provded n ths secton, upon an appcaton for a budng permt, the nstaaton of concrete curbs, gutters, and sdewaks aong the fu frontage of the parce to whch the budng permt appes, to the grades and ocatons approved by the drector of pubc works, sha be requred n any dstrct other than the A, AG, RE, RH and RR dstrcts. Ths subdvson sha n no way be construed as to precude the cty's rght to requre concrete curbs, gutters, sdewaks, street pavng, and necessary dedcatons n any dstrct wthn the cty. If an excepton s requested for any permt, regardess of the dstrct wthn whch the Item 12.a. - Page 4

CITY COUNCIL CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT APRIL 11, 2017 PAGE 5 constructon s permtted, t sha not be consdered effectve wthout the wrtten approva of the drector of pubc works, pursuant to ths secton. By Cty Muncpa Code, the Pubc Works Drector may requre sdewaks as a condton of a budng permt n these zones where approprate. A Counc adopted Sdewak Master Pan woud assst staff n determnng the specfc propertes where sdewaks woud be requred. A Sdewak In-eu fee may be estabshed for those propertes where sdewaks are not warranted. Revenues from the Sdewak In-eu fees coud be aocated to sdewak nstaaton and repar projects n other areas of the Cty. It s recommended that the Cty Counc drect staff to prepare a report for future consderaton to adopt a Sdewak Master pan and to prepare optons for a Sdewak In-eu fee. 2. Consder adopton of State of Caforna Streets & Hghways Code Secton 5610: Staff may research and provde recommendatons for future Counc consderaton for potenta adopton by Ordnance of the State of Caforna Streets & Hghways Code Secton 5610 whch mposes the obgaton for sdewak repar on adjacent property owners. A arge number of Caforna Ctes have passed ordnances and deveoped sdewak repar programs that requre the partcpaton of the adjonng property owner. Attachment 4 provdes a summary of the sdewak repar poces for some of the San Lus Obspo County muncpa agences. In addton, the League of Caforna Ctes prepared an nformatve gude for ctes when consderng optons for sdewak repar (Attachment 5). Ths report provdes a varety of optons that may be consdered to transfer some of the responsbty for sdewak repar to the adjonng property owners n accordance wth State aw and common muncpa practce. It s recommended that the Cty Counc drect staff to prepare a report for future consderaton to potentay adopt by Ordnance the State of Caforna Streets & Hghways Code Secton 5610 and to provde optons for mpementaton. 3. Aow for a No-fee Encroachment Permt for sdewak repar: Proposed revsons to the Communty Tree Program Ordnance are beng prepared n whch a recommendaton w be presented to wave the Encroachment Permt fee for property owners who are drected to repar sdewak sectons aong the frontage of ther property where the damage was caused by a prvate tree or where other defects exst that were not caused by a Cty-mantaned street tree. The current cost for an encroachment permt s $619.00. It s recommended that the Cty Counc consder ncudng a No-fee encroachment permt for sdewak repar provson when proposed revsons to the Communty Tree Program Ordnance are brought before you. Item 12.a. - Page 5

CITY COUNCIL CONSIDERATION OF SIDEWALK INFRASTRUCTURE ASSESSMENT AND REPLACEMENT REPORT APRIL 11, 2017 PAGE 6 ADVANTAGES: The preparaton of the sdewak condton assessment and fecyce repacement schedue may be used by the Cty Counc for comparson purposes when determnng fundng prortes n future budgets for a Genera Fund reated abtes, ncudng other asset repacement needs. DISADVANTAGES: Some of the recommended abty transfer optons presented n ths report may not be we receved by Arroyo Grande property owners. ALTERNATIVES: The foowng aternatves are provded for the Counc s consderaton: 1. Receve and provde comments and drecton on the Sdewak Infrastructure Assessment and Repacement Report and suggested pocy modfcatons reated to the Cty s sdewak nfrastructure; or 2. Provde drecton to staff. ENVIRONMENTAL REVIEW: Not appcabe. PUBLIC NOTIFICATION AND COMMENTS: The Agenda was posted at Cty Ha and on the Cty s webste n accordance wth Government Code Secton 54954.2. ATTACHMENTS: 1. Sampe st of sdewak dspacement ocatons 2. Sdewak dspacement densty anayss. Hot spots map 3. Current sdewak ocatons map 4. San Lus Obspo County muncpa agences sdewak survey 5. League of CA Ctes- Sdewak repar and abty report Item 12.a. - Page 6

Sdewak Condton Assessment - Fed Resuts ATTACHMENT 1 Item 12.a. - Page 7

ATTACHMENT 2 CITY OF ARROYO GRANDE SIDEWALK INVENTORY Ths map dspays the ocatons of exstng sdewak, non-exstng sdewak, and decomposed grante paths as of October 2015. Tota LF of exstng sdewak: ~465,533.23 LF DG Path Exstng Non-exstng 0 0.25 0.5 Created by: Cama Greenbach, GIS Techncan March 20, 2017 Item 12.a. - Page 8 1 Mes :

ATTACHMENT 3 Ths map dspays the 2016 sdewak nventory data symbozed by the sze of the dspacement. The heat map shows the densty of the dspacements by spata dstrbuton (where they are ocated), to hghght areas of the Cty that may need to be prortzed for repacements. Arroyo Grande Sdewak Dspacement Densty by Spata Dstrbuton Low > 1" Dspacement 1/2" - 1" Dspacement 1/4" - 1/2" Dspacement Mssng Sdewak 0.25 0 0.5 1 Mes Densty by Spata Dstrbuton Hgh Item 12.a. - Page 9 ² Fgure 1 OCTOBER 2016 Created by: Cama Greenbach, GIS Techncan, Cty of Arroyo Grande

ATTACHMENT 3 Ths map dspays the 2016 sdewak nventory data symbozed by the sze of the dspacement. The heat map shows the densty of the dspacements weghted by the estmated cost to repar t, to hghght areas of the Cty that may need to be prortzed for repacements. Arroyo Grande Sdewak Dspacement Densty Weghted by Cost Estmate Low > 1" Dspacement 1/2" - 1" Dspacement 1/4" - 1/2" Dspacement Mssng Sdewak 0.25 0 0.5 1 Mes Densty by Cost Hgh Item 12.a. - Page 10 ² Fgure 1 OCTOBER 2016 Created by: Cama Greenbach, GIS Techncan, Cty of Arroyo Grande

ATTACHMENT 4 Sdewak Repar Programs By Cty San Lus Obspo: Sdewak repar s the responsbty of the property owner. http://www.socty.org/vng/neghborhood/sdewak-and-parkway-mantenance San Lus Obspo Muncpa Code 12.16.020 Atascadero: Sdewak mantenance s the responsbty of the property owner. http://qcode.us/codes/atascadero/ Atascadero Muncpa Code 6.4.6.04 Paso Robes: Sdewak, curb, gutter, drveway, or utty damage from prvate property trees sha be the responsbty of the property owner. http://www.prcty.com/government/departments/pubcworks/streets/curbs-sdewaks.asp https://www.muncode.com/brary/ca/e_paso_de_robes/codes/code_of_ordnances?nodeid =16335 E Paso de Robes Muncpa Code 10.04.080 (Trees) E Paso de Robes Muncpa Code 11.12.040 (?) Morro Bay (2013): Athough the Caforna Street & hghways Code assgns sdewak mantenance responsbtes to adjonng property owners, the Cty contnues to provde repar operatons to mantan safe and usabe sdewaks. http://www.morro-bay.ca.us/archvecenter/vewfe/item/1769 Grover Beach: The Street Dvson mantans, repars, and rebuds streets, curbs, gutters, and sdewaks. http://www.grover.org/ndex.aspx?nid=148 Item 12.a. - Page 11

ATTACHMENT 5 But It s Your Sdewak! Sdewak Repar and Labty Thursday, May 8, 2014 Genera Sesson; 2:15 4:15 p.m. Gerad C. Hcks, Supervsng Deputy Cty Attorney, Sacramento League of Caforna Ctes 2014 Sprng Conference Renassance Esmerada, Indan Wes Item 12.a. - Page 12

Notes: League of Caforna Ctes 2014 Sprng Conference Renassance Esmerada, Indan Wes Item 12.a. - Page 13

BUT IT S YOUR SIDEWALK! Ths paper and presentaton arose out of a desre to create a comprehensve summary of the aw concernng an adjacent property owner s obgaton to repar a defectve sdewak under Streets and Hghways Code secton 5610. Ths effort was motvated to address the numerous objectons and threatened awsuts from angry property owners upon recept of a repar notce. The tte was suggested by the oft heard property owners mantra and perspectve. Research nto the hstory of sdewak repar for purposes of the paper ed to research nto the genera hstory of sdewaks and research concernng repar naturay deved nto research concernng the nterpay between sdewak repar and abty for unrepared sdewaks. In sum, the paper and presentaton dea wth varous ssues concernng the most pedestran of nfrastructure sdewaks. Because understandng some of the ssues concernng sdewak repar and abty may best be understood n a hstorca context, I begn wth a bref hstory of sdewaks. I A Bref Hstory of Sdewaks Sdewaks, perhaps the most ubqutous yet nconspcuous of crtca nfrastructure, have a ong hstory. The frst evdence of paved pedestran paths dates from ancent Greece and Rome. 1 Sdewaks, as wakways separated from roads, dsappeared durng the Mdde Ages. They reappeared durng the seventeenth century when the frst governmenta acts cang for the pavng of pedestran paths were passed by Parament a few years after the 1666 Great Fre of London, apparenty as part of Chrstopher Wren s rebudng and organzaton of the Cty of London. In the nneteenth century, sdewaks were often constructed by adjacent property owners and busnesses and by the end of that century sdewaks had become an mportant aspect of urban 1 Loukatou-Sders and Ehrenfeucht, Sdewaks: Confct and Negotaton over Pubc Space (2009) p. 15 Item 12.a. - Page 14

nfrastructure. Because sdewaks were often the ony paved aspect of streets, they were the easest pace to wak, shop and carry out varous economc and soca actvtes. In commerca areas, sdewaks extended the ream of adjacent shops; shopkeepers dspayed ther merchandse on sdewaks and stored deveres and overstock on them as we. Street pedders made a vng outdoors whe street speakers and newsboys conveyed nformaton to passersby. Sdewaks were aso a ream for soca encounters where frends, acquantances, and strangers mxed. The sdewaks were thus both a route and a destnaton; a way to move through the cty, but aso a pace of commerce, soca nteracton, and cvc engagement. 2 Sdewaks were aso crtca to the safety of a cty and to estabshng a sense of communty. As sdewaks became more prevaent, ctes moved to standardze ther dmensons and the matera used to construct them. Wth standardzaton came a contracton of ther use as ctes focused on a snguar purpose for sdewaks to move peope. As a resut, many ctes mposed sdewak reguatons wth respect to the storage of matera or products; pubc speakng; vendng; and oterng. Jane Jacobs amented the reducton n vaue and physca contracton of sdewaks n her 1961 book, The Death and Lfe of Great Amercan Ctes, Sdewak wdth s nvaraby sacrfced for vehcuar wdth, party because cty sdewaks are conventonay consdered to be purey space for pedestran trave and access to budngs and go unrecognzed and unrespected as the unquey vta and rrepaceabe organs of cty safety, pubc fe, and chd rearng that they are. 3 In her book, Jacobs reates numerous exampes of how a busy and vbrant sdewak, even n the ess affuent parts of a cty, can decrease crme and promote soca dscourse. 2 Loukatou-Sders and Rena Ehrenfeucht, Vbrant Sdewaks n the Unted States: Rentegratng Wakng and a Quntessenta Soca Ream (Access Magazne Sprng 2010), p. 24 3 Jacobs, The Death and Lfe of Great Amercan Ctes (1961) Item 12.a. - Page 15

In recent years, sdewaks have ganed renewed respect as panners seek to restore ther status as pubc space as opposed to a smpe mode of transportaton. The heath benefts of wakng are patent but have been extoed by the Surgeon Genera and numerous heath professonas as a means to combat obesty, dabetes, and other dseases. In addton, as a resut of concerns wth cmate change, energy conservaton and congeston, transportaton panners vew sdewaks as an mportant component of sustanabe and heathy communtes and wakng as an nexpensve and enjoyabe actvty that reduces congeston and conserves energy. 4 II Sdewak repar A. Approaches to Sdewak Repar and Mantenance Despte ther ong hstory and ubquty, sdewaks are often overooked as non-crtca nfrastructure. Whe stng brdges, dams, evees, ports, ras and roads, the Amercan Socety of Cv Engneers Report Card for Amerca s Infrastructure does not menton sdewaks. Whe t s true that the catastrophc faure of a dam or brdge woud undoubtedy have caamtous resuts, the cumuatve njures and consequent expendture of muncpa funds from the ncrementa decay of sdewaks can be equay substanta. The ega and fsca mpact of broken or dspaced sdewaks and the responsbty for ther repar has been a constant, f nconspcuous, ssue n many Caforna ctes for some tme. The ssue of repar responsbty has obvous ega mpcatons: abty for the exstence of a dangerous condton and the requrement to mantan an accessbe sdewak under the Amercans wth Dsabtes Act and Caforna 4 Loukatou-Sders and Rena Ehrenfeucht, Vbrant Sdewaks n the Unted States: Rentegratng Wakng and a Quntessenta Soca Ream (Access Magazne Sprng 2010); Amercan Pannng Assocaton, The Importance of Sdewaks (The New Panner, Fa 2013) Item 12.a. - Page 16

dsabty access aws. The repar obgaton aso creates potca dffcutes - both for those ctes whch mantan an ordnance pacng the repar obgaton on property owners (and who consstenty dea wth surprsed and dsgrunted property owners) and those ctes that have not enacted such an ordnance because of pubc opposton and whch face a steady ncrease n damaged sdewaks and the potenta abty arsng from those sdewaks. Los Angees provdes a snguar exampe. In 1974, as a resut of a grant of federa funds, Los Angees passed an ordnance pacng the obgaton to repar sdewaks on the Cty. Snce the federa funds dred up a few years ater, the Cty has had dffcuty enactng egsaton to pace the repar obgaton back on the property owners. As of 2010, approxmatey 4,700 of the Los Angees 11,000 near mes of sdewak (approxmatey 43%) were n dsrepar. The Cty estmated spendng between 4 and 6 mon doars n abty cams and the cost estmate to repar the sdewaks was between 1.2 and 1.5 bon doars. 5 Los Angees has been consderng repeang the 1974 ordnance to shft responsbty back to the homeowners. Ths effort has faced opposton from the homeowners and even unsuccessfu efforts n the State Legsature to requre a pubc vote pror to pacng the obgaton back on the homeowner. Sacramento aso expermented wth assumng the repar obgaton. From 1943 through md-1973, the Cty s pocy was that property owners were responsbe for the cost of a repars except those caused by Cty street tree roots for whch the Cty shared responsbty. In md-1973, the Cty adopted a new pocy makng the Cty responsbe for a sdewak repars. Not surprsngy, sdewak repar requests ncreased substantay. In md-1976, fndng the exstng pocy unworkabe, the Cty eected to adopt a pocy makng property owners responsbe for a sdewak repars, ncudng those repars necesstated by damage caused by Cty street trees. Other ctes have backed away from an ordnance pacng the 5 Brasue, Where the Sdewak Ends In a Tree Root-Reated Lawsut, (Oct. 20, 2011) <http://a.curbed.com/archves/2011/10/where_the_sdewak_endsn_a_tree_rootreated_awsut.php> Item 12.a. - Page 17

obgaton of sdewak repar on the property owner after a pubc outcry. Those ctes that do have sdewak repar ordnances n pace nonetheess face fary consstent questons from the pubc as to the farness and egaty of askng a property owner to repar the pubc sdewak. Caforna, ke numerous states, has provsons aowng muncpates to mpose a repar obgaton for damaged sdewaks on adjacent property owners. 6 Pursuant to these provsons, vrtuay every major Unted States cty has a sdewak repar program that paces a repar obgaton on adjacent property owners to varyng degrees. For exampe, New York, Phadepha, Phoenx and Cncnnat make the adjonng property owners fuy responsbe for adjacent sdewaks. Atanta aso makes the adjacent property owner responsbe and just faced a pubc backash for sendng out a number of repar notces prompted by dsabty access pressures. 7 Chcago operates a shared cost responsbty program by mtng the repar cost to a set prce per square foot and subsdzng any remander. Washngton D.C. s responsbe for reparng the sdewaks but permanent repars may be subject to avaabe fundng. Caforna s sdewak repars provsons are set forth n Streets and Hghways Code sectons 5600 et seq. In 1935, Assemby B 1194 amended secton 31 of the Improvement Act of 1911 to provde for the repar and mantenance of sdewaks, curbng, parkng strps and retanng was by adjacent property owners. Athough the egsatve hstory of Assemby B 1194 s no onger avaabe, some possbe context for the measure may be geaned from the tme perod of ts passage. In hs Inaugura Address of January 8, 1935, Caforna Governor Merram, n speakng of the economc upheavas of the Great Depresson, sad: 6 See Schaefer v. Lenahan, 63 Ca.App.2d 324 327-328 (1944), and cases cted theren. Research nto the statutes referenced n the twenty cted cases (a sma and competey unscentfc sampe) reveaed that the earest enactment date was 1856, the atest was 1937 and the average enactment date was 1903. 7 http://archve.11ave.com/news/oca/story.aspx?storyd=277146 (2/11/13) Item 12.a. - Page 18

But as fondy as some may beeve, and as earnesty as others may hope, government tsef cannot ndefntey assume the responsbty for meetng a the demands of ths depresson and ths emergency. * * * Of prmary mportance at ths tme, from the standpont of an effcent admnstraton of State functons, s the need for pacng the government of Caforna on a sound fnanca bass. Ths we must do wthout mposng ntoerabe taxes upon the peope and wthout undertakng obgatons not absoutey essenta to the pubc servce. As the frst step n such a drecton, we must adopt a program that w enabe us to keep out expendtures beow our ncome. Assemby Member Lyons presented Assemby B 1194 a tte over two weeks ater. Though the Governor s message does not expcty reference an effort to pace the sdewak repar obgaton on adjacent property owners, t s consstent wth the tone and content of the Inaugura Address. The prmary provson requrng a property owner to repar a defectve sdewak s Streets and Hghways Code secton 5610. 5610. Mantenance by ot owners The owners of ots or portons of ots frontng on any porton of a pubc street or pace when that street or pace s mproved or f and when the area between the property ne of the adjacent property and the street ne s mantaned as a park or parkng strp, sha mantan any sdewak n such condton that the sdewak w not endanger persons or property and mantan t n a condton whch w not nterfere wth the pubc Item 12.a. - Page 19

convenence n the use of those works or areas save and except as to those condtons created or mantaned n, upon, aong, or n connecton wth such sdewak by any person other than the owner, under and by vrtue of any permt or rght granted to hm by aw or by the cty authortes n charge thereof, and such persons sha be under ake duty n reaton thereto. Pursuant to the authorty of secton 5610, the majorty of ctes n Caforna have passed ordnances mposng the obgaton for sdewak repar on adjacent property owners. However, there s some dversty as to the extent of the obgaton and how t s mposed. Some ctes, ke Sacramento, mpose the entre repar cost on the property owner regardess of the cause of any damage or dspacement. Many ctes exempt damage caused by cty trees from the repar obgaton. Another opton foowed by many ctes s a 50/50 sharng of repar costs. 8 Some ctes, n addton to a genera sdewak repar program, have nsttuted a program whch requres a defectve sdewak to be repared upon the sae of the property. 9 Ths has the beneft of aowng the cost of repar to be recovered or pad as part of the prce of the property. One means of mposng such a requrement s to requre that the escrow documents ncude a certfcate of compance wth the sdewak ordnance. In addton, some ctes requre the sdewak to be repared as a condton of the ssuance of a budng permt above a set vaue. One ssue often overooked s the secondary obgaton of secton 5610. After settng forth the obgaton of adjacent property owners to mantan the sdewak n such condton that the sdewak w not endanger persons or property... [or] nterfere wth the pubc convenence, secton 5610 except[s]... those condtons created or mantaned n, upon, 8 Ths dversty appears to be present throughout the naton. A survey of 82 ctes n 45 states found that 40 percent of the ctes requred property owners to pay the fu cost of reparng sdewaks, 46 percent share the cost wth property owners, and 13 percent pay the fu cost of repar. Shoup, Fxng Broken Sdewaks (Access, No.36, Sprng 2010) pp. 30-36 9 Both Pasadena and Pedmont have such programs n pace. Item 12.a. - Page 20

aong, or n connecton wth such sdewak by any person other than the owner, under and by vrtue of any permt or rght granted to hm by aw or by the cty authortes n charge thereof, and such persons sha be under a ke duty n reaton thereto. There are no reported cases nterpretng or appyng ths anguage. The purpose appears to be to mpose on uttes whch mantan factes (poes, gude wres, vauts, etc.) n or on the sdewak, the same obgaton as mposed on adjacent property owners. Ths s a somewhat dfferent conceptua obgaton than that mposed on adjacent property owners because the source of any defect or nterference wth the pubc convenence woud be the utty facty, not the sdewak tsef. Potentay, the prmary mportance of ths aspect of secton 5610 woud be wth respect to accessbty ssues. In many ctes, utty enttes mantan factes, partcuary poes, whch reduce the sdewak wdth beow the requred three feet of the Caforna Budng Code 10 and the four feet requred by the ADA draft Pubc Rght-of-Way Gudenes. 11 B. Lega Issues Invovng Sdewak Mantenance Obgaton One ssue that adjacent property owners charged for sdewak repars often rase s whether the sdewak repar obgaton of secton 5610 appes where the sdewak s dspaced or damaged due to trees ocated n the pubc rght of way. 12 Though no statstcs exst, tree roots are 10 Tte 24 2013 Caforna Budng Code, secton 11B-403.5.1 Cear Wdth Excepton 3. The cear wdth for sdewaks and waks sha be 48 nches mnmum. When, because of rght of way restrctons, natura barrers or other extng condtons, the enforcng agency determnes that compance wth the 48-nch cear sdewak wdth woud create an unreasonabe hardshp, the cear wdth may be reduced to 36 nches. 11 http://www.access-board.gov/gudenes-and-standards/streets-sdewaks/pubc-rghts-of-way/proposedrghts-of-way-gudenes - R302.3 Contnuous Wdth. Except as provded n R302.3.1, the contnuous cear wdth of pedestran access routes sha be 1.2 m (4.0 ft.) mnmum, excusve of the wdth of the curb. 12 The ssue s one of substanta mportance to the Cty of Sacramento - one of many ctes camng the monker: Cty of Trees. Accordng to some estmates, as of 2005, Sacramento had more trees per capta than any cty except Pars. Jason Margos, Caforna s Capta Sees Bg Benefts n More Trees (11/25/05) <http://www.npr.org/tempates/story/story.php?storyid=5027514>. Item 12.a. - Page 21

undoubtedy the predomnate cause of damage to sdewaks. 13 As noted above, many ctes do not mpose the sdewak repar obgaton on adjacent property owners where trees ocated n the rght of way have damaged the sdewak. Many do, ncudng those wth a 50/50 sharng program. Though there s a great dea of vscera appea to the argument that an adjacent property owner shoud not bear responsbty to repar a sdewak caused by a tree n the rght of way when the property owner has no contro over the tree s roots, the statutory anguage and the reported cases do not support ths poston. 14 Intay, t shoud be noted that secton 5610 makes no dstncton as to the cause of a damaged sdewak n mposng a mandatory repar obgaton on the adjacent property owner. Though not expressy addressng the ssue, Jones v. Deeter (1984) 152 Ca.App.3d 798, supports the proposton that the adjacent property owner s responsbe where damage s caused by a tree ocated n the rghtof way. In Jones, the pantff was njured when she trpped on a break n the sdewak caused by a Magnoa tree ocated n the parkway. 15 The pantff brought sut aganst both the property owner and the cty. The pantff appeaed a judgment for the property owner. The Court, n affrmng the judgment, hed that whe the property owner had a duty of repar, even though the sdewak had been damaged by a tree n the rght-of-way (parkway), abty coud not be mposed aganst the property owner on ths bass. Under secton 5610 the abuttng owner bears the duty to repar defects n the 13 Randup, McPherson and Costeo, A Revew of Tree Root Confcts wth Sdewak, Curbs and Roads, (Kuwer Academc Pubshers) 2003 14 In Jordan v. Cty of Sacramento (2007) 148 Ca.App.4 th 1487, at page 1492 footnote 2, the court questoned the egaty of mposng repar responsbty on property owners for damage caused by cty trees and suggested the Cty mght wsh to revst ts ordnance... 15 The Jones court defned parkway as the area between the sdewak and the pubc street. Streets and Hghways Code secton 5600 defnes sdewak to ncude a park or parkng strp mantaned n the area between the property ne and the street ne and aso ncudes curbng, bukheads, retanng was or other works for the protecton of any sdewak or of any such park or parkng strp. Ths porton of the rght of way s aso sometmes referred to a as mow strp. Item 12.a. - Page 22

sdewak, regardess of whether he has created these defects. It was fet, however, that t woud be unfar for such an owner to be hed abe to traveers njured as a resut of sdewak defects whch were not of the owner s makng. (Id. at 827, tacs added.) Thus, the case hghghts the absoute nature of the repar obgaton (even when caused by trees ocated n the rght-of-way) by contrastng t wth the absence of any abty exposure uness the defect s caused by the owner. Puttng asde the ega arguments, not a of the equtes for mposng the cost of repar on adjacent property owners where damage s caused by a tree n the rght of way are on the sde of the property owner. Whe property owners may argue that they have no contro over the drecton of tree roots; nether does the cty. In addton, cty trees typcay provde great benefts to homeowners and for many the presence of arge trees s a factor n the purchase of ther home. The trees are aesthetcay peasng and provde shade whch coos the home and heps keep other vegetaton ave. They aso enhance the monetary vaue of the home. Whe obtanng these benefts, the homeowners do not ncur the costs of mantanng the trees (such as waterng, trmmng or fertzng) or suffer the potenta of abty for njures caused by the tree tsef (fang mbs; ow hangng branches; branches obscurng traffc sgns or ghts, etc.). III Sdewak Labty A. Tort Labty for Defectve Sdewaks Nne years after the passage of the predecessor to secton 5610, the Frst Appeate Dstrct decded Schaefer v. Lenahan (1944) 63 Ca.App. 2d 324. Forence Schaeffer stepped n a hoe n the sdewak n front of property owned by J.W. Lenahan. Lenahan was notfed by the Cty and County of San Francsco to repar the sdewak but dd not do so. The common aw rue was that, n the absence of statute, the owner or occupant of premses abuttng a pubc street had no duty to repar the sdewak and consequenty, no abty to those njured as a resut of a Item 12.a. - Page 23

defectve sdewak. Schaefer argued that the predecessor to secton 5610 (as t exsted n 1944) mposed a duty of repar and a voaton of that duty gave rse to a cause of acton for those njured by a defectve sdewak. The court rejected the argument, fndng that the obvous purpose of the statute was to provde a means of rembursng the cty for the cost of the repars. To mpose a whoy new duty upon the property owner n favor of thrd persons woud requre cear and unambguous anguage. (Id. at p. 332.) The mtaton on abty to thrd partes for a defectve sdewak s commony referred to as the Sdewak Accdent Decsons Doctrne. (Contreras v. Anderson (1997) 59 Ca.App.4 th 188, 195 fn.6.) As noted by Lenahan, a abty obgaton may be mposed on property owners by cear and ambguous anguage. An ordnance wth such anguage was approved by the Court n Gonzaes v. San Jose (2004) 125 Ca.App.4 th 1127. The San Jose ordnance approved by Gonzaes provdes that f an abuttng property owner fas to mantan a sdewak n a non-dangerous condton and any person suffers njures as a resut, the property owner s responsbe to the person for the resutng damage and njury. (Gonzaes, supra, 125 Ca.App.4 th at p. 1134 ctng San Jose Muncpa Code 14.16.220 and 14.16.2205.) However, t s mportant to note the mts of sdewak abty ordnances. Because muncpa abty for torts s a matter of statewde concern, such abty may not be reguated by oca ordnances nconsstent wth state aw as estabshed by the Tort Cams Act. (Cty of Ontaro v. Superor Court (1993) 12 Ca.App.4 th 894, 899-900 ctng Soceta per Azon de Navgazone Itaa v. Cty of Los Angees (1982) 31 Ca.3d 446, 463.) Ths precudes a cty from absovng tsef of abty but does aow concurrent abty of adjacent property owners. Sdewak abty ordnances provde[] an addtona eve of responsbty for the mantenance of safe sdewaks on the owners whose property s adjacent to and abuts the Item 12.a. - Page 24

sdewak. (Gonzaes, supra at 1139.) These owners are often n the best poston to qucky dentfy and address potentay dangerous condtons that mght occur on the sdewaks, as opposed to [the cty]. (Id.) Moreover, as the Gonzaes court noted, n order to fuy protect ts ctzens, a cty woud have to have sdewak nspectors crcuatng the cty, day and nght. (Id.) B. Labty for Defectve or Narrowed Sdewaks under the ADA and Caforna Dsabty Access Laws: In 2002, n Barden v. Cty of Sacramento (9 th Cr. 2002) 292 F.3d 1073, the Nnth Crcut, reyng n arge part on statutory and reguatory nterpretaton by the Unted States Department of Justce, determned that sdewaks consttuted programs under the ADA. Whe the matter was pendng n the Unted States Supreme Court on a wrt of certorar, the partes setted the case and conveyed ths nformaton to the Court. Certorar was subsequenty dened eavng the Nnth Crcut opnon ntact. The ega effect of the decson was that because mantanng sdewaks was a program under the ADA and ts mpementng reguatons, sdewaks needed to be made mantaned to be mmedatey accessbe. Accordng to the Unted States Soctor Genera, nterpreted the hodng and the Tte II reguatons to requre ony that the Cty s system of pubc sdewaks when vewed n ts entrety be generay accessbe to and usabe by ndvduas wth dsabtes. 16 Subsequent to the Barden decson, federa agences, partcuary the Unted States Access Board (the entty charged wth creatng pubc rght of way gudenes) has taken the poston n 16 Bref for the Unted States as Amcus Curae of the Unted States Soctor Genera n Cty of Sacramento, et a. v. Barden, et a.(fed May 2003). Item 12.a. - Page 25

numerous pubcatons, that sdewaks are factes. 17 Ths s aso the concuson reached by the Ffth Crcut n Frame v. Arngton, 657 F.3d 215 (5 th Cr. 2011 cert dened 2012). The drft from sdewaks as programs to sdewaks as factes s notabe. Under the ADA, programs must be made mmedatey accessbe; conversey, factes are subject to a new constructon/ateraton standard n essence meanng that ony newy constructed or atered sdewaks must be made accessbe. Ths s aso the framework adopted by the ADA draft Pubc Rght of Way Gudenes. Though ctes wthn the Nnth Crcut reman subject to the Barden decson, the Frame decson, as we as the poston taken by federa agences, may form the bass for a reexamnaton of the Barden decson. Of course, t s mportant to recognze that Caforna aw has requred that new constructed sdewaks, whether constructed usng prvate or pubc funds, have been requred to be accessbe snce 1971. (Government Code secton 4450 and Heath and Safety Code secton 19956.5). Presumaby, ths has somewhat softened the mpact of the 2003 Barden hodng. 17 See e.g. Unted States Access Board, Proposed Rghts-of-way Gudene, Part 1900. The accessbty gudenes for pedestran factes n the pubc rght-of-way are set forth n the appendx to ths part. < http://www.accessboard.gov/gudenes-and-standards/streets-sdewaks/pubc-rghts-of-way/proposed-rghts-of-waygudenes/part-1190-accessbty-gudenes-for-pedestran-factes-n-the-pubc-rght-of-way> Item 12.a. - Page 26

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