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Home My WebLink AboutMINUTES - 02122013 - D.5RECOMMENDATION(S): OPEN the hearing on the appeal of the Notice and Order to Abate a public nuisance on the real property located adjacent to 2444 Lunada Lane, Alamo, California in Contra Costa County (APN: 188-312-007), RECEIVE and CONSIDER oral and written testimony and other evidence from the County Public Works Department staff, the property owners, other interested persons; and CLOSE the hearing. FIND that the facts set forth below are true. Further FIND that the fencing on the above-described property encroaches onto County property without an encroachment permit, and within Kinder Morgan’s pipeline easement area, and therefore constitutes a public nuisance in violation of Contra Costa County Ordinance Code Section 1002-2.008. DENY the appeal; and AFFIRM the Public Works Director’s Notice and Order to Abate the above-described public nuisance. ORDER the property owners, within 30 days of the date on which the Board’s decision is mailed to them, to abate the public nuisance by completing the following: (1) obtain a permit from the County to enter the Iron Horse Corridor; (2) remove the fencing in the manner determined by the County with Kinder Morgan representatives on site when the work is performed; and (3) complete the permit process with an APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 02/12/2013 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Candace Andersen, District II Supervisor Mary N. Piepho, District III Supervisor Karen Mitchoff, District IV Supervisor Federal D. Glover, District V Supervisor Contact: Carrie Ricci, 925-313-2235 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: February 12, 2013 David Twa, County Administrator and Clerk of the Board of Supervisors By: June McHuen, Deputy cc: D. 5 To:Board of Supervisors From:Julia R. Bueren, Public Works Date:February 12, 2013 Contra Costa County Subject:HEARING on appeal of Notice and Order to Abate Nuisance at 2444 Lunada Lane RECOMMENDATION(S): (CONT'D) approved final inspection from both County and Kinder Morgan representatives. DIRECT the County Public Works Director, or designee, to remove the fencing from the property and charge the cost of the work and all administrative costs to the property owners if the property owners do not comply with the Board’s decision within the time specified in the decision. DIRECT the Public Works Director to send the Board’s decision by first class mail to the property owners and to each party appearing at this hearing, and to file the Board’s decision with the Clerk of the Board of Supervisors. FISCAL IMPACT: The cost of removing the fencing from the property and installing chain link fencing at the property line is estimated to be $5,000. If the County Public Works Department performs the work of abatement and the property owner does not pay, the actual cost of the work and all administrative costs may be imposed as a lien on the property after notice and a hearing, and may be collected as an assessment against the property. BACKGROUND: This is an appeal of a Notice and Order to Abate a public nuisance issued by the Public Works Director. The Notice and Order to Abate directed the owners of property located at 2444 Lunada Lane, Alamo, California in Contra Costa County (APN: 188-312-007) (the “Subject Property”), to remove fencing and other improvements that encroach within the County’s Iron Horse Corridor property, and encroach on Kinder Morgan’s pipeline easement on the County’s property. The Subject Property is owned by Thomas and Erin Newlin (“Property Owners”). Contra Costa County owns the Iron Horse Corridor, which is the former Southern Pacific Railroad Right-of-Way. The instruments that conveyed the Iron Horse Corridor to the County are attached hereto as Exhibit A, and incorporated herein by reference. The Corridor includes various utility easements, including a 10-foot-wide Kinder Morgan easement for a high-pressure petroleum pipeline. The County Public Works Department recently updated its maps to identify the actual locations of existing facilities that are located in the Corridor and determined that adjacent property owners have encroached onto the County’s property. The encroachment includes the fencing maintained by the Property Owners. Pictures showing the encroaching fencing are attached hereto as Exhibit B, and incorporated herein by reference. Additionally, the Property Owners’ encroachments extend within Kinder Morgan’s pipeline easement in violation of Section 51014.6 of the California Government Code and State Fire Marshal Regulations. Maps showing the County’s Iron Horse Corridor property, the area occupied by Kinder Morgan’s easement, and the approximate location of the encroachments are attached hereto as Exhibit C, and incorporated herein by reference. On March 22, 2012, Kinder Morgan determined that one of the fence posts adjacent to the Subject Property was located within 18 inches of the pipeline. Kinder Morgan performed an emergency excavation to ensure the pipeline was not damaged by the fence post. Kinder Morgan staff remain concerned that the presence of the encroachment within the easement poses a public safety risk. According to Kinder Morgan, third-party contact is the biggest threat to pipelines. Independent of the encroachment onto Kinder Morgan’s easement, the encroachments are located on County’s property, without a valid encroachment permit, in violation of County Ordinance Code Section 1002-2.008, which provides, in part, that, “No person, firm, corporation, or association, without first obtaining a written permit, shall: (1) Encroach or make any encroachment within, on, over, or under the limits of any right-of-way; (2) Make any alteration within, on, over, or under right-of-way; (3) Construct, put on, maintain, or leave on a right-of-way any obstruction or impediment; … (5) Place on, over or under a right-of-way any pipeline, conduit, or other fixture; … (7) Place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment so as to endanger the normal usage of the right-of-way.” Ordinance Code section 1002-2.002(3)(B) defines “encroach” to include “going on, over, or under, or using any right-of-way so as to prevent, obstruct, or interfere with the normal use of that way,” including, “erecting or maintaining any post, sign, pole, fence, on, over, or under the right-of-way.” On March 15, 2012, County Public Works Department staff sent the Property Owners a letter to notify them that their fencing was encroaching on County property without a permit, in violation of Ordinance Code Division 1002. A copy of that letter is attached hereto as Exhibit D and incorporated herein by reference. The letter requested that they remove the encroachment within 90 days. Public Works staff met with the Property Owners and Kinder Morgan representatives on March 26, 2012, and all further communications between the County and the Property Owners were directed to the Property Owners’ attorney pursuant to their request. Copies of correspondence directed to, and received from, the Property Owners attorney prior to October 30, 2012 are attached hereto as Exhibit E, and incorporated herein by reference. The Property Owners assert that their use of the Iron Horse Corridor has ripened into both prescriptive and adverse rights. However, under California law, property owned by the public for a public use is not subject to adverse possession and no one can acquire a prescriptive title to such property regardless of how long it is occupied. Due to the Property Owners’ continued refusal to remove their encroachments or enter into a license agreement with the County, on October 30, 2012, the Public Works Director served, by certified mail, a Notice and Order to Abate on the Property Owners. The Notice and Order to Abate also was posted on the property on October 30, 2012. A copy of the Notice and Order to Abate is attached hereto as Exhibit F, and incorporated herein by reference. On November 15, 2012, the Property Owners notified the Clerk of the Board of Supervisors staff that they would appeal the order to abate. The written materials in support of the appeal are attached hereto as Exhibit G, and incorporated herein by reference. Notice of this hearing was sent to the Property Owners by first class mail on January 29, 2013. For the reasons explained above, Public Works Department staff recommends that the Board affirm the Notice and Order to Abate issued by the Public Works Director, and direct staff to take actions recommended in this board order. CONSEQUENCE OF NEGATIVE ACTION: The County would continue to have exposed liability due to the encroachment on County property. CHILDREN'S IMPACT STATEMENT: Not applicable CLERK'S ADDENDUM CLOSED the hearing; FOUND that the facts set forth in the staff report to be true; Further FOUND that the fencing on the property encroaches onto County property without an encroachment permit, and within Kinder Morgan’s pipeline easement area, and therefore constitutes a public nuisance in violation of Contra Costa County Ordinance Code Section 1002-2.008; DENIED the appeal; and AFFIRMED the Public Works Director’s Notice and Order to Abate the public nuisance; ORDERED the property owners, within 30 days of the date on which the Board’s decision is mailed to them, to abate the public nuisance by completing the following: (1) obtain a permit from the County to enter the Iron Horse Corridor; (2) remove the fencing in the manner determined by the County with Kinder Morgan representatives on site when the work is performed; and (3) complete the permit process with an approved final inspection from both County and Kinder Morgan representatives; DIRECTED the County Public Works Director, or designee, to remove the fencing from the property and charge the cost of the work and all administrative costs to the property owners if the property owners do not comply with the Board’s decision within the time specified in the decision; DIRECTED the Public Works Director to send the Board’s decision by first class mail to the property owners and to each party appearing at this hearing, and to file the Board’s decision with the Clerk of the Board of Supervisors. ATTACHMENTS Exhibit A Exhibit B Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit B Exhibit B 12652 O R 570CO. PARCEL 33 12652 O R 570CO. PARCEL 3410’ W IDE EASEM ENTKINDER M O RG AN X X IRO N HO RSE C O RRIDO R Scale: Drawn By: Checked By: Plot Date: Cad File1" = 40’ 29-JAN-2013 14:54 188-312-007_Newlin.dgn PW Sheet: O wner: NEW LIN 23JLH188-312-0072444 LUNADA LANE NEWLIN18.1’20.8’1.7’PARC EL LINES FENC E C O UNTY RIGHT-O F-W AY 10’ KINDER M O RGAN EASEM ENT EXHIBIT C NEW LIN Lunada Ln 100’ WI DE SP R R RI G HT- OF-WA Y NEWLIN PARCE, PARCEL "A" of 24 LSM 25 BY 24 LSM 25OUT OF PCL 1 (5 M 117)PARCELS CREATED OCT 23, 1963 FEATURES SURV EY O F TO PO G R APHIC SEE ENLAR G EM ENT FO R 20 11 CURRENT COUNTY RWRAILROAD RW CREATED JUNE, 1891 PARCEL 1 CREATED BY THIS MAP (5 M 117), JULY 1911EXHIBIT C Exhibit D Exhibit D Exhibit D Exhibit D Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E Exhibit E 2444 LUNADA LANE ALAMO, CA 94507 NOTICE AND ORDER TO ABATE TO THOMAS NEWLIN AND ERIN NEWLIN: NOTICE IS HEREBY GIVEN that your encroachment on, and maintenance of fencing on, County property without an encroachment permit is in violation of Section 1002-2.008 of the Contra Costa County Ordinance Code. The violation has been declared a public nuisance by the County Director of Public Works and must be abated immediately. The public nuisance is located adjacent to 2444 Lunada Lane, Alamo, on Contra Costa County property identified as Assessor’s Parcel No. 188-312-007. YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE within 30 consecutive calendar days from the issuance of this order. The issuance date is specified below. You may abate the nuisance by removing from County property the portion of fence located on that property. If you fail to abate the public nuisance within the number of days specified, the County may order its abatement by public employees, private contractor, or other means. The cost of said abatement, if not paid, may be levied and assessed against the property as a special assessment lien and may be collected at the same time and in the same manner as ordinary county taxes are collected, subject to the same penalties, procedures and sale in case of delinquency. YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT, but any such appeal must be brought prior to the expiration of the number of days specified above for completion of abatement. The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by an appeal fee of one hundred twenty-five dollars ($125,00); and be submitted to the Clerk of the Board of Supervisors at the following address: Clerk of the Board of Supervisors County of Contra Costa 651 Pine Street, 1st Floor Martinez, CA 94553 One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the Clerk of the Board will cause the matter to be set for hearing before the Board of Supervisors and notify you of the date and location of the hearing. If you have any questions regarding this matter, you may direct them to the county officer issuing this notice, or her designee, at the address or telephone number listed below. ISSUANCE DATE: October 29, 2012 Julia R. Bueren, Director of Public Works Contact: Carrie Ricci, Iron Horse Corridor Manager, Contra Costa County Public Works Department 255 Glacier Drive, Martinez, CA 94553, (925) 313-2235 Exhibit F Exhibit G Exhibit G Exhibit G Exhibit G