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Thread: Sidewalks in School Zones

  1. #1
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    I sent this letter to Senator Grothman and Rep. Gottlieb:
    Dear Representative Gottlieb and Senator Grothman:

    I live within 1000' of a private school, and I would like some clarification on the firearms carry prohibition in school zones. 948.605 clearly exempts any private property within this school zone, however, I am not sure what effect the easement for public use of land on my sidewalk means under this law, even though I do own the sidewalk itself (as do my neighbors). In order for me to excercise my right to openly carry a firearm for security, defense, or any other lawful purpose, I would like clarification on this law so that I will not find myself facing felony charges for peacably traversing public roads and walkways in my own town. I think the best way to do this would be to amend the law to exempt any lawful conduct within the area, similar to the access to hunting land provision, but without any need for prior permission. Another way would be to ask the Attorney General for clarification on what constitutes "private property" for this law, as I cannot believe that even with the Wisconsin Legislature's history of poor law writing, the intent here was to stop anyone from moving through this area while lawfully armed. Please note that there are no exemptions to this for off-duty police officers, meaning that cops are commonly committing this felony on their way to and from work in many areas of the State.

    I look forward to hearing your thoughts on the matter, because even though this law is clearly unconstitutional (as similar laws in other states have been found), I do not wish to have to defend myself against a felony charge because of an obtuse and overbearing law.

    Sincerely,
    Mike Gallo
    I got this reply today from Sen. Grothman:
    Dear Mike,

    I contacted our Legislative Council drafting attorney regarding your inquiry. She said the law does not speak specifically to your question and suggested that you contact your local district attorney for an interpretation as they have enforcement authority.
    As soon as I figure out who the new DA is, I will forward this query his way. In the meantime, I encourage others to send similar letters if you live in a school zone, as we can at least stir up some talk about the intent of the law, and maybe get some hard answers as to its practical application.

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    props dude

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    1. Are you sure this is an easement and not a dedication?

    2. In either case the sidewalk has lost the character of private property. At least that's what the judge would say.

    3. It doesn't matter what the DA or other official tells you. It won't save your bacon if you are charged.

    4. I have not heard of a state gunfree school zone law being overturned, for any reason, can you provide an example?

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    1) The term used in the Municipal code is "public right-of-way," which is analagous to an easement as far as I can tell. I'd love to have the nuances explained to me, though.

    2) I'm not worried about what the judge thinks of its character. I have cleartitle on the land and improvements where the sidewalk is located, I pay to repair it either directly or through special assessment, I keep it clean of snow, ice, and other debris, therefore it is my private property regardless of the public right of way. Unfortunately or not, I would not be tried locally as all the judges here would probably have to recuse themselves. Most likely I would be sent over to Washington County.

    3) If the DA tells me they won't charge me and then they charge me, don't you worry about the legal ramifications; I would be more highly motivated to pursue direct action.Regardless, this isn't about getting permission, it's about raising awareness of the problems with the law, in hopes of eventually getting enough DAs or legislatorsto question the application of the law to get legislative or executive action in our favor. I'd rather see it as part of a comprehensive carry law, but we'll see what we accomplish.

    4) I'm having trouble finding any caselaw. I've read a few articles claiming that this happened in LA, but now it's looking like the reporter(s) got it wrong and it was either a 14th amendment challenge or a ruling that was specifically tied to CCW permit holders. I know LA is 5th circuit, but I'm 99% sure that Lopez was a Texas case. I think I'm going to drop that from my letter unless I can find a case name in the near future. I also recall reading about CO or NY, but again, I can't find case names to verify any of that at this time, so I'll cede the point.

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    apjonas wrote:
    3. It doesn't matter what the DA or other official tells you. It won't save your bacon if you are charged.
    Mistake of law defense would be available.

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    apjonas wrote:
    4. I have not heard of a state gunfree school zone law being overturned, for any reason, can you provide an example?
    A constitutional defense of lawful purpose would be available under Hamdan-Vegas.

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    What came first The WI GFSZ act or the WI RTBA Constitutional amendment?

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    GFSZ was '91.

    RKBA was '98.
    - What da hay?

    Keep Calm and Carry On

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    State Researcher lockman's Avatar
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    So the people in essence overturned the GFSZ in 98 with the RKBA amendment. What are the chances the legislature will repeal it before some poor soul has to challenge it in the courts. GFSZ that extend past the physical bounderies of the school property can not coexist with RKBA if it creates a prohibition.

    I will contact my legislator from the district where my family reteat is located. Better yet I will write the rep tommorow and follow up when I am up there next month.


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    Funny thing is I found out during my research that Asshat Kohl introduced the (currently standing) federal gun-free school zone bill in 1996 to "fix" the issues with Lopez. I can't believe they were serious - SCOTUS says "this has no effect on commerce, therefore it is unconstitutional," and Congress says "DOES TOO, so THHHHBBBBBTTTTT."

    I swear to God these people are like children.

    Oh, I forgot to thank you for the reply, apjonas. I love this forum because if you didn't think of something, someone else here surely has.

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    I have done hours of research of state statutes trying to find a good definition of public property and private property. A definition of private property is important to the gun free school zones restrictions. I think it is important to keep in mind that the "school zone" statute says private property not personal private property. In other words it means thatfirearms can be carried on all private property within the 1000 foot perimeter around school grounds, regardless the owner. It does not mean only the private property of thefirearm carrier.

    I tend to agree with Rick Finsta's opinion concerning sidewalks, boulevards and in my opinion streets. From what I can determine from studying the variousreal estatestatutes, sidewalks, boulevards and streets and/or roads are private property that has gone tough the comdemnation process to have them declared as an easement to the local political unit. The property so condemned as an easement is then known as a "public right of way". The public has unrestricted lawful use of the easement but the property still isowned and appears on the deed of the adjacent property owner.

    I included the attachment img004 to this post. It is a survey map of a 5 acre parcel of land I own. It is part of the deed and abstract of the property. What is importantis the portion that reads 450th street. The property fronts on a town road named 450th street. As can be seen on the map. 450th street consists of a 66 foot easement. Thirty three feet from the center line of the road into my property is the amount of my property that is declared public right of way. At the same time you can see that my property line extends to the middle of 450th street.

    The roadway proper is 22 feet so there is a remaining 11 feet that could be used for boulevard and/or sidewalk. They too would be part of the 33 foot easment attached to my property and would be public right of way but they would also be within the boundary of my property. IANL but it is my opinion that same scenario would apply in a city situation. Easements can be declared "public rights of way" but they still are private property.

    Cities and towns as a rule "own" very little real estate property. Generally it consists of things like parks, parkways, zoos and tax default property. They want as much land as possible in private hands so as to maximize the property tax base.

    Those are my thoughts on the issue. Unfortunately I can't findanything in the state statutesthat supports my opinion. Nothing clearly defines what is considered private property and what is considered public property.

    Maybe there is a member that is a surveyor, or maybe some member has a personal contact that is a surveyor, that could give an opinion or correct my opinion on the subject. If my opinion is correct then there would generally be very little property in the 1000 foot zone that would not be private property.

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    Don't think it's going to always work like that - with property lines extending well into the street.

    My survey (I had it handy as I was applying for a permit) shows an area much smaller than the land I actually "take care of". I live on a corner and my "front yard" has a property line drawn a good 15+ feet from the curb. The side-on-corrner is drawn about 30 feet in (50' from road centerline).




    - What da hay?

    Keep Calm and Carry On

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    This is the only document I coud find that directly addresses the sidewalk and alley issue. It is a California law and I don't know if it is pertinent elsewhere although I suspect it is universal.

    This is the html version of the file http://www.delmar.ca.us/NR/rdonlyres...912_item17.pdf.
    Google automatically generates html versions of documents as we crawl the web.









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    Page 1
    City of Del Mar
    Memorandum
    TO: Honorable Mayorana City Council Members
    FROM: Car! Hilliard, Council Member
    DATE : September 12, 2005
    SUBJECT: Streets and Alleys
    ISSUE:
    What are the respective rights of the City and adjacent landowners with respect
    to streets and alleys?
    PRINCIPLES OF LAW:
    • An easement is the right of use over the property of another.
    • Streets and alleys are easements for passage called public right-of-ways
    (PROW).
    • The property under the easement is owned by the adjacent landowners
    who have title to the land out to the center of the street or alley.
    . These landowners have the right to place improvements in the PROW that
    do not interfere with passage.
    • The City has the right to reasonably regulate such improvements as
    custodian of the PROW and in the exercise of its police powers.
    • If the Council finds that a PROW is no longer needed for passage it may,
    in its discretion, vacate the easement.
    There is no disagreement concerning these general principles of law. See
    Attachments "A", "B" & "C."
    HISTORY:
    Del Mar was subdivided in 1912 and 1913. At that time the housing style was to
    construct garages at the back of the lot served by alleyways. As lots were
    gradually sold and developed the style changed to garages in the front accessed
    from the street. Many alleys were never constructed or used ("paper alleys"). An
    additional problem is that the streets as drawn on the map sometimes do not
    match the streets as constructed. An example is 15th at Via Alta where the street
    was built on a portion of the lot at 550 15th Street.
    SEP 122005 ITEM 17 l*

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    Page 2
    City Council Report
    From Council Member Carl Hilliard
    Re: Streets and Alleys Report
    September 12, 2005
    BACKGROUND:
    Members of the public have appeared before the Council and argued that the
    Council cannot vacate paper alleys because: "[T]his Alley is the property of the
    citizens of Del Mar;" "[l]t is not right for the government to give away public
    lands;" "[Residents have turned public property into private backyards." Similar
    statements have been made by council members, e.g. "the fireplace is on City
    property;" "it [PROW] is public land." These statements are incorrect and reflect
    a general misunderstanding concerning the ownership of the land. It appears
    that such misunderstanding may have influenced the outcome of the proceedings
    before the council concerning the decision to vacate/clear certain paper alleys.
    The argument was also made in public hearings that even if alleys are not
    needed for passage they can be cleared to serve as fire barriers and will be
    available for recreational use. Indeed, some members of the council stated
    "[T]here are two ways to look at the alleyway, one as a passageway and one as
    open space." "Whatever the original purpose of the property, it now serves a
    more important public safety purpose." This is incorrect. An alleyway is an
    easement for passage and no other purpose. In my opinion, it is an abuse of
    discretion to fail to vacate an alley no longer needed for passage in order to
    serve other interests.
    This misunderstanding concerning property "ownership" has lead to other
    unreasonable restrictions on the rights of adjoining landowners. The adjacent
    landowner has the right to make improvements within the PROW that do not
    interfere with the public access or constitute a hazard to health or safety. This
    right is subject to reasonable regulation by the City. There are several examples
    of overreaching on the part of the City in regulating the landowners' use of the
    PROW. For example, the City prohibits the removal or trimming of City trees in
    the PROW, however, the trees do not belong to the City; they belong to the
    landowner who, I argue, has the absolute right to trim or remove the trees in the
    same manner as any other tree on the landowner's property.
    Along the same lines, the City cannot require a landowner to make
    improvements within the PROW. However, almost as a matter of routine, the
    City imposes certain requirements on the landowner seeking a building permit for
    construction on his/her lot to make improvements/repairs to the PROW that are
    unrelated to the construction project. As an example, our permit to extend the
    master bedroom on Stratford is conditioned upon our repair of the potholes in the
    alley behind the house. The lack of nexus between the construction and the
    required repair is, in my opinion, a taking.
    ¿ SEP 12 2005 item 17

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    Page 3
    City Council Report
    From Council Member Carl Hilliard
    Re: Streets and Alleys Report
    Septembers, 2005
    Finally, the practice of requiring the landowner to sign a covenant that says; "By
    accepting the benefits herein, Permittee [landowner] acknowledges title to the
    City property [PROW] to be in the City and waives all right to contest that title."
    The City Attorney uses the term "title" to describe the City's interest in the
    PROW. The City's right to administer the PROW is construed by some as
    equivalent to "owning" the easement. Whatever term is applied, the City does
    not have fee title or any interest that can be sold, transferred or conveyed in the
    PROW. Thus, I argue that the term "title" means fee ownership and the covenant
    is a taking.
    ENCROACHMENT PERMITS:
    None of the above limits or compromises the power of the City to require the
    landowner to remove or repair improvements in the PROW that interfere with the
    public access, constitutes a hazard or interferes with the general welfare of the
    public.
    Chapter 23.28 of the Del Mar Municipal Code sets the rules for applying for
    encroachment permits. Section 23.28.020 A defines '"City Right-of-way or
    Easement' shall mean any real property interest granted to the City". Contrast
    this provision with San Diego Municipal Code § 62.0301 "This division applies to
    encroachment in the public right-of-way maintained by the Property Owner." See
    Appendix "D." No real property interest has ever been granted to the City for the
    streets and alleys In Del Mar. Thus, this Chapter simply does not apply. Indeed,
    the sprinkled use of the terms City property and public property in the Chapter is
    incorrect and compounds the misconception that streets and alleys are public
    property - they are not.
    RECOMMENDATIONS:
    (1) Encroachments by adjacent landowners be routinely approved by staff for
    changes/improvements in the PROW that do not interfere with the use of
    the PROW for access and are of the type that do not otherwise require a
    permit from the City.
    (2) Upon request, the City reconvey any "title" in the PROW to the landowner
    burdened by the easement.
    3 SEP 122005 item 1

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    Page 4
    City Council Report
    From Council Member Carl Hilüard
    Re: Streets and Alleys Report
    September 12,2005
    (3) Revisit the policy concerning vacating paper alleys in light of the above
    and vacate all or any portions of streets or alleys that are not usable or
    used for access and for which there is no foreseeable need for access.
    (4) Upon finding that an alley should be retained for a pathway, vacate the
    PROW that is not needed for that purpose.
    Attachment A - Article entitled "Who owns our streets and alleys, by Cari
    Hiiliard, dated July 15, 2005"
    Attachment B - Opinion No. 82-1, by Deputy City Attorney of City of San
    Diego, dated March 22,1982
    Attachment C - San Diego Municipal Code Chapter 6, Article 2: Public
    Rights-of-Way and Land Development, Division 3:
    Encroachments on Public Rights-of-Way or Public Property
    4 SEP122005 ITEM 17

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    Page 5
    ATTACHMENT A
    For Council Report dated September 12, 2005
    S SEP 122005 item 1

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    Page 6
    Page 1 of2
    Null Account
    From: Carl Hiliiard [sharon@vianetcompanies.com]
    Sent: Friday, July 15, 2005 12:02 PM
    To: Sharon Hiliiard
    Subject: Who owns our streets & alleys?
    * *
    CarHfilliard
    Del Mar City Council member
    Who owns our streets & alleys?
    Contrary to popular belief, the city does not own the property occupied by most of the residential streets
    and alleys in Del Mar. The City is merely the custodian of an easement, called a "public right-of-way,"
    which permits the public to use the land for passage of cars and pedestrians.pl The adjacent property
    owners own the land to the middle of the street, [ii]
    Whenever the public docs not have occasion to exercise its easement to its full extent, the owner of
    the land may make any use not inconsistent with the easement.[ili]
    This right of the property owner to place improvements on the easement has been twisted by the city
    into an obligation to make improvements that are arbitrarily selected by the staff. This tribute is
    extracted as a condition to processing construction permits and generates an untold, amount of
    resentment from property owners.Hv] To make matters worse, the city demands that the property owner
    sign a covenant that acknowledges that the city "has title" to the right-of-way thereby ostensibly taking
    the landowner's ownership interest. This forced taking of money and property rights from those who
    wish to build or remodel as permitted by the building code is flat out wrong.
    When all or part of a street or alley is not necessary for use by the public for passageway now or
    in the foreseeable future then the unused portion of the right-of-way should be vacated and the
    easement terminated .£yj Arguments such as the easement should be preserved for open space,
    firebreaks, play grounds or to prevent an increase in FAR are reasons for condemning the landowner's
    underlying interest. When the city refuses to vacate a portion of the easement that is unusable for
    passage on these grounds alone, it is in effect taking the landowner's title to the underlying land.
    It is time to put an end to the practice of extracting tribute. The tension between the rights of the
    landowner and the desire of the city to take the land and money arises because the city is an 800 pound
    gorilla. When faced with the choice between paying thousands of dollars in tribute or dealing with
    bureaucratic opposition to issumg a building permit, the property owner caves. What is worse yet is the
    imposition of additional conditions is a rolling process where anytime along the way the staff "finds"
    9/7/2005 SEP 122005 item 1

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    Page 7
    Page 2 of2
    new improvements to "city property" that the landowner must pay for. Given the entrenched nature of
    this mindset and practice, any change will up to you as voters.
    Please send your comments to me at chi11iard@sbcglobal.net.
    [click here to read more]
    [i] Severo v. Pacheco. 75 Cal. App. 2d 30 (1946); Cal.Civil Code, Section 831; U.S. v. 5.32 Acres of Land. (S.D. Cal. 1948)
    79 F. Supp. 748.
    [ii] The fee title under California law remains vested in the owner of the adjacent property and each property owner owns out
    to the middle of the dedicated street. Abar v. Rogers. 23 Cal.App.3d 506; 100 Cal. Rptr. 344 (1972).
    [ml Inre Anderson. 130 Cal.App. 395; 19 P.2d 1027 (1933); Abar v. Rogers, supra.
    ¿iy] Inappropriate demands are for improvements unrelated to construction, e.g. fill potholes in the street.
    [y] Streets and Highway Code section 8324(b) that says the street may be vacated; The burden is on the applicant for street or
    alley vacation to establish that tire right-of-way is not needed. Rancho Palos Verdes v^City.Council, 59 Cal.App. 3rd 869,
    129 Cal. Rptr. 173(1976).
    9/7/2005 SEP 122005 ITEM 17

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    Page 8
    PUBLIC RIGHT OF WAY
    Page 1 of4
    P.O. Box 448
    Oceanside, CA
    92049
    FPPC #1275332
    PUBLIC RIGHT OF WAY
    A public right-of-way is a form of easement that grants use rights in a
    particular parcel of land to non-owners of the land. The public right-of-
    way easement is for passage that includes eveiy reasonable means of
    transportation for persons, goods and transmission of intelligence. "^
    It seems counterintuitive to say that the city does not own the land
    under the streets and alleys. After all the deeds to our lots typically describe
    our property as "Lot , of Arden Heights commencing at a point on the
    easterly line of said lot, etc." And yet the law is clear that where deeds refer to
    designated lots by numbers and letters with specific reference to a recorded
    map on which a roadway is depicted, the grantee is presumed to take title to
    the center of the roadway, subject only to easements of use for passage.
    Indeed, it has been held that a title insurance policy on property bounded by a
    street includes within its coverage insurance of the grantee's title to the center
    [ix]
    of the bounding street. J
    Most of the rights-of-way in Del Mar were created when developers
    filed subdivision maps in the early 1900s. In many instances, the roads that
    were constructed did not accurately track the lines on the map. For example, a
    portion of 15th street at Via Alta is outside of the right-of-way shown on the
    subdivision map and actually covers a portion of the lot at 550 15 Street.
    When these subdivision maps were filed lifestyles were far different
    than they are today. The average house was small with a garage located in the
    back of the lot accessed by alleys. Lots were slow to sell in the early 1900's
    and by the time most of Del Mar homes were being constructed the style had
    changed to larger houses with garages reached from the street - many alleys
    were never constructed and not used.
    Encroachment permits.
    ixl
    The city administers the use of the right-of-way. Development or
    use of any part or portion of the public right-of-way "in a manner other than its
    intended use"4 J is an "encroachment." The city has the power to permit
    encroachment under or on the right-of-way for the transportation of goods and
    services such as electricity, information, water, and gas lines. The city may
    also grant encroachment permits to the underlying landowner to construct
    walls and fences or plant trees and shrubs in the right-of-way so long as the
    ?
    http://w ww. d elmarfo eus. com/publi crightofway .htm
    PI 2 2005
    9/7/2J
    ITEM

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    Page 9
    PUBLIC RIGHT OF WAY Page 2 of 4
    encroachment does not interfere with the public's use rights. J
    The city recognizes mailboxes and planting and maintenance of vegetation that
    will not grow to exceed a height of 30 inches as falling within this category.
    ^-—* An encroachment permit is required for all other planting and structures
    to be: placed in the right-of-way. The threshold question for the issuance of an
    encroachment permit is "will the proposed encroachment have an adverse
    effect on the public use of the right-of-way?" The city, of course, has
    jurisdiction over other aspects of any improvements the same as it would over
    the building of a structure or trees anywhere else in the city. The city may
    charge a fee for an encroachment permit that will recover the cost anticipated
    to be incurred in connection with the issuance of the permit and any
    inspections needed to ensure compliance with the permit conditions.
    When is it appropriate to vacate an easement?
    There are two types of situations in Del Mar where the city should consider
    vacating all or part of unused rights-of-way. The first is where the road was
    not built in the location shown on the subdivision map. The second situation
    where the city should consider vacating the right-of-way is the unused alleys,
    [xiv]
    Streets not baili according to subdivision map lipes. Where roads
    were built outside of the boundaries of the paper right-of-way an
    easement was acquired by use, a prescriptive easement. Thus, the city
    is not required to relocate the right-of-way or pay compensation for the
    taking of an easement. The question is should the city normalize the
    road boundaries by vacating the right-of-way that was not used?
    An example is the property at the Southwest corner of Zuni and
    Forest Way. Approximately twelve feet of the westerly edge of
    the 1910 paper right-of way covers a steep bank that was not
    intended to be and is not suitable for public passage. Here the
    map lines should be conformed to reflect the actual street
    location and the portion of the right-of-way that cannot be used
    for public passage should be vacated.
    Utilised alleys. "An alley differs from a street in quality as well as
    quantity, in that 'it is a right of way ... to serve a limited neighborhood
    for local convenience and not for general passage or travel as in the
    case of streets, "'k—^ The paper alley between Klish and
    Amphitheatre is a good example of the issues in the debate. The Parks
    and Recreation Committee found that the potential use of the alley as a
    public pathway was not viable. The staff found that the alley could not
    be used for vehicles because of the steep terrain and that it would not
    be useful as a public pathway without the removal of encroachments
    and the construction of stairs.
    SEP 122005 item 17
    http: //www. delmarfocu s. cotn/public_right_o fjvay .htm 9/7/2005

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    Page 10
    PUBLIC RIGHT OF WAY Page 3 of 4
    There was vociferous opposition to vacating the paper easement
    between Klish and Amphitheatre on the grounds that it "would increase
    the FAR of the adjoining landowners," "was needed for open
    space/firebreak/recreation." These may be valid reasons for the city to
    acquire the ownership interest from the underlying landowners but they
    are not sufficient reasons to fail to vacate an unused alley because a
    right-of-way can only be used for alley purposes. The Council found
    that the alley should be retained for use as a "goat trail."
    The city does not have the power to sell the easement or to use it for another
    purpose such as open space, firebreaks, or playgrounds. Nor is the objection
    that the property owner will enjoy a windfall benefit a valid reason for not
    vacating the easement. It follows that refusal to vacate a street or alley on
    these grounds alone is an abuse of discretion.
    Conclusion. The city does not own the property under a public right-of-way
    easement and cannot unreasonably constrain encroachments by the underlying
    landowner so long as those encroachments do not interfere with the public's
    right of passage. When all or a portion of the right-of-way is not needed for
    present or future prospective street/alley purposes then it should be vacated
    and not maintained simply to restrain development or preserve open space
    because those objectives violate the rights of the underlying landowner. This
    means that the paper street lines on the subdivision maps should be adjusted to
    fit the actual street lines and the alleys not built or used because of the change
    in times should be vacated.
    ^ Civil Code section 801(4); City of Manhattan Beach v. Superior Court. 13 Cal.4th 232,
    240; 52 Cal. Rptr. 2d 82 (1996).
    [vii]
    Id. This includes gas and water pipes, sewer lines, telephone, cable, electric lines and
    poles.
    ^^ Severo v. Pacheco. 75 Cal.App.2nd 30, 170 P2d40 (1946); Murray v. Title Ins. & Trust
    C_a, 250 Cal.App.2nd 248, 58 Cal. Rptr. 273 (1967) It will be presumed that where property is
    sold by reference to a recorded map, the grantee takes to the center of the street. Hixon v.
    Jones.. 253 Cal.App. 2d 860, 61 Cal. Rptr. 883; Milivard v. Faus. 26S Cal.App. 2d 76, 73 Cal.
    Rptr. 697(1968).
    Tisi
    L ) Id., Murray v. Title Ins. & Trust Co.
    L' Be:llo v. ABA Energy Corp., 121 Cal. App. 4th 301; 16 Cal. Rptr. 3d 818 (2004); "The City
    Council is the custodian ofthat public property." DMMC § 23.28.010; Bello at 308. An
    easement is a real property interest in the land - not fee title to the land.
    ^ DMMC § 23.28.020C.
    SEP 122005 ITEM 17
    ¡ 0 hrtp://ww\v.delmarfocus.com/public_right_of_w'ay.htm 9/7/2005

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    Page 11
    PUBLIC RIGHT OF WAY Page 4 of 4
    ^DMMC§ 23.28.050.
    Cai. Givi] Code, Section 831, which establishes a rebuttable presumption that an owner
    of land bounded by a road or street owns to the center of the way, applies to alleys. Besneatte
    v. Gourdin, (1993, 4th Dist) 16 Cal.App. 4th 1277, 21 Cal.Rptr. 2d 82.
    The Council's decision to vacate or not will not be upset by the courts in the absence of
    an abuse of discretion. Vanderhurstv. Tholcke. 113 Cal. 147; 45 P. 266.
    k^ Irwin v. Manhattan Beach, 65 Cal. 2nd 13, 51 Cal.Rptr. 8S1 (1966)
    delmarfocus.com.
    Revised: 07/19/05 18:29:58 -0400.
    SEP 122005 ITEM 17
    | [ htlp://w\^rw.delmarfocus.corn/public_right_of_way.htiri 9/7/2005

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    Page 12
    ATTACHMENT B
    For Council Report dated September 12, 2005
    IX SEP 122005 ¡TEM 1

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    Page 13
    m
    raERT i. TEAZI
    AUUW4T Cm ATTOUEY
    .CURTÍS M. FTTZMTUCK
    Ttwoa Onn MWr ort ^TOfcKfv
    OFFICE OF
    The City Attorney
    CITY OF SAN DIEGO
    John w. Witt
    C IT* ATTOHWir
    CTTY ADMNJSTRATIOX (KILBIKC
    MN DiECO. CAilFOfWtA 92101
    J7WJ 236-6220
    OPINION NO. 82-1
    DATE:
    SUBJECT:
    REQUESTED BY:
    PREPARED BY:
    March 22, 19B2
    RECEIVED
    MAR -2 1983
    Street Vacations - Can City be compelled
    to vacate; can City lease presently
    unneeded streets for fair market value?
    Mayor and Council
    Harold O. Valderhaug, Deputy
    1.
    2.
    QUESTIONS
    Can any citizen compel the City Council to vacate
    a dedicated street if the Council does not establish
    a present or prospective need for the street?
    Can the City lease presently unneeded but dedicated
    street right-of-way to the adjacent property owner
    for use for non-street purposes in consideration
    of payment of fair marXet value?
    CONCLUSIONS
    No.
    BACKGROUND S"«£- f^H-
    In connection with the consideration by the Public
    Facilities and Recreation Committee of a request for an
    encroachment permit in a portion of dedicated street and
    in connection with the City Council's consideration of the
    proposed vacation of a street, our office was requested to
    answer the above two questions.
    In the specific encroachment permit situation, the City
    Engineer refused to issue a permit and enter into an encroach-
    ment removal agreement pursuant to Municipal Code, Sections
    62.0301 et seq. The Municipal Code basically provides that
    13
    122005 item i /

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    Page 14
    Mayor and Council -2- March 22, 19ft2
    the City Engineer nay approve encroachment applications and
    enter into encroachnent renoval agreements when the City
    Engineer determines that the proposed encroachment will not
    "adversely affect the public health, safety or general
    welfare." The factual circumstances involved a restaurant
    open air dining area in La Jolla which has been built out
    into the dedicated but unimproved right-of-way. The connittee
    overruled the City Engineer's refusal to grant the permit
    and requested our opinion as to whether the City could lease
    the public right-of-way to the adjacent owner for fair
    market value, or whether the City could require that the
    fair market value of the land encroached upon be paid as
    consideration for the encroachment permit.
    A somewhat similar question arose in regard to a proposed
    street vacation before the Council with the additional
    question as to whether there is any legal obligation to
    vacate a presently unused but dedicated Etreet.
    ANALYSIS
    The vast majority of streets in the City of San Diego
    have been acquired in connection with the filing of subdivision
    maps. Streets acquired on subdivision naps result in the
    City owning an easement for street purposes for the benefit
    of the general public. Severo v. Pacheco, 75 Cal.App.2d
    30 (1946), 170 P.2d 40; Cal.Civil Code, Section 631- U.S. v. 5.3S
    Acres of Land, (S.D. Cal. 194R) 79 F.Supp. 74B. The City
    does not acquire fee title to the property within the street
    area. The fee title under California law remains vested in
    the owner of the adjacent property and each property owner
    owns out to the middle of the dedicated street. Abar v. Rogers,
    23 Cal.App.3d 506; 100 Cal. Rptr. 344 (1972).
    In the event a street is determined to be unnecessary
    for present or prospective street use, the street may be
    vacated and the result is that the property is no longer
    burdened with a street easement.
    In some comparatively rare situations, the City owns
    the underlying fee in dedicated streets. Such situations
    are generally found where the City owns the property on one
    or both sides of a street and in those situations where the
    City has been required to pay for the Btreet right-of-way.
    For many years the City's policy has been to acquire the
    full fee interest in those cases where street riqht-of-way
    must be purchased in order that the City will have the
    opportunity to sell the property to the adjacent owners and
    thus recoup its money in the event the street is ever vacated.
    ft
    SEP 182005 ITEM 17

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    Page 15
    Mayor and Council -3- March 22, 1982
    In both the fact situations which led to the request
    for this opinion, it is our understanding that the City is
    the owner of only a street easement and not the underlying
    fee interest. Therefore, the City has only the right on
    behalf of the general public to utilize the street area for
    street purposes. The City, being the owner of a mere easement,
    does not have the right to utilise the property for non-
    street purposes or to lease the property to anyone else for
    non-street purposes.
    The owner of the underlying fee, on the other hand, has
    the right to utilize the property burdened by the street
    easement for any purpose which is not inconsistent with the
    property's use for a public street. Abar v. Rogers, supra.-
    For example, the property owner abuttina a street could
    extract minerals under the street so long as such extraction
    occurred at a depth and in such a way that no street use or
    any use incidental to street use is interferred with.
    Encroachment permits are required for such uses as basements
    which protrude under the right-of-way since the City has the
    right to change the street grade as well as the right to run
    utility lines of all sorts under the street.
    In those fact situations where the City concludes that
    a portion of dedicated right-of-way is not presently needed
    for public street purposes, the City may enter into encroachment
    removal agreements as presently authorized under Municipal
    Code Sections 62.0301 et seq. Such encroachment removal
    agreements must contain provisions protecting the public's
    ultimate right to use the right-of-way. Therefore, all such
    encroachment permits for surface level encroachments contain
    a 30-day termination provision. There is no specific
    limitation on the amount that can be charged for an encroachment
    permit. . The City can certainly establish fees for such
    permits which ouarantee total reimbursement for all City
    costs anticipated to be incurred in connection with the
    issuance of such permits and in connection with the potential
    costs of administering the permits and any inspections
    needed to ensure compliance with the permit conditions. The
    City Manager could best recommend appropriate fees which
    would guarantee full cost recovery to the City. The general
    requirement of payment of fair market value for the encroached
    upon area, however, is not in our opinion, legally supportable.
    Fair market value payment in such a situation would result
    in charging a property owner for his use of his own property.
    Fair market value fees would not presumably reflect the City's
    costs.
    ¡S SEP 122005 item 17

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    Page 16
    Mayor and Council -4- »arch 22, 1982
    In those cases where the City owns the underlying fe«
    interest in the street and it is determined that a portion
    of the street is not presently needed for public street
    purposes, the City could lease the unneeded portion to the
    adjacent property owner on a nonth-to-month basis for full
    fair martet value. This is so because in such a fact
    situation, the City does have the right to use the property
    for any purpose which would not interfere with the public's
    need to use the property for a public street.
    Distinquished fron the above discussion is the City's
    right to grant franchises within the public right-of-way.
    The City Charter, Section 103, specifically authorizes the
    Council to grant franchises. Franchises are generally non-
    exclusive and allow the use of street right-of-way by utility
    companies and taxis to provide a public service within the
    dedicated right-of-way. Franchises nay only be granted for
    purposes consistent with and incidental to street uses~ In
    granting' franchises, the city nay "require the payment of a
    fee beyond any cost of regulation and administration of the
    franchises. A_franchise could not be used to allow a restaurant
    to extend*a*-* facilities into the public rìght-of-way since ~_~~
    a restaurant isZnot a proper street use. "Street Uses-Who
    Can Be 'Franchised ' ?", (John R. Pierce, Dep. City Atty,
    Richmond), Conference Papers, League of California Cities,
    May 196R.
    With reaard to the question of whether the City must
    justify the refusal to vacate an unimproved street, the
    California state law provides the procedure for the vacation
    of streets. The procedure requires that the Council make a
    finding that the street is not needed for either present or
    prospective street purposes. Streets & Highways Code,
    Section 8324. If the Council does not naXe such a finding,
    the street cannot be vacated. Rancho Palos Verdes v. City Council
    59 Cal. App. 3d 869, 12? Cal. Rptr. 17 3 Í19-7&amp. Whether a
    presently unutilized but dedicated street may be necessary
    for some potential street use at some tine in the future is
    a highly speculative question and the City Council does not
    have to justify a refusal to vacate a street. Therefore,
    the owners of property burdened with a street easemeAt
    cannot place an obligation on the City Council to establish
    that a street is needed for present or prospective afreet
    purposes. The burden is on the applicant for a street
    vacation to establish to the Council's satisfaction that the
    dedicated right-of-way is not so needed.
    lb SEP122ÖÖ5 item 17

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    Page 17
    /
    /
    (
    Mayor and Council
    -5-
    March 22, Iftft*
    In summary, where
    street purposes over a
    unneeded right-of-way
    street, purposes since
    the property for anyth
    street vacation situât
    to vacate a street but
    finding that the stree
    street use is nade.
    the City owns only an easement for
    portion of property, it nay not leas«
    to an adjacent owner for use for non-
    the City itself has no right to use
    ing other than street purposes. In
    ions, the City Council is not obligated
    may vacate a street only if a specific
    t is not needed for present or prospective
    Respectfully submitted,
    JOHN W. WITT, City Attorney
    By
    \er\fiiAJ~
    Harold 0. Vaia
    erhaug, Dej(u\y
    HOVjps:221.1.1(x043)
    APPROVED:
    n
    SEP 122005 ITEM 17

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    Page 18
    ATTACHMENT C
    For Council Report dated September 12, 2005

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    Page 19
    San Diego Municipal Code Chapter 6: Public Works and Property,
    .,..,,.-.., , Public Improvement and Assessment Proceedings
    (2-2001)
    Article 2: Public Rights-of-Way and Land Development
    Division 3: Encroachments on Public Rights-of-Way or Public Property
    ("Permits For Work in the Public Right-of-Way "
    added 11-27-1956 by 0-7229 N.S.)
    (Retitled to "Permits For Work in the Public Rights-of
    Way and for Land Development Work" on 9-20-1960 by
    0-8354N.S.; repealed8-17-1971 by O 10660 N.S.)
    ("Encroachments on Public Rights-of-Way
    or Public Property " added 8-17-19 71 by 0-10660 N.S.)
    §62.0301 Applications
    This division applies to encroachments in the public right-of-way maintained by the
    Property Owner.
    Applications submitted by the Property Owner for permits authorizing encroachment
    structures in the public right-of-way shall be made in accordance with section
    62.0105 of this Article.
    No encroachment application shall be approved when it is determined by the Permit
    Issuing Authority that the encroachment structures will adversely affect the public
    health, safety, or general welfare.
    All encroachment applications within Centre City shall be subject to the review of the
    Centre City Advisory Committee.
    A decision on an encroachment application for a wall or fence in the public right-of-
    way shall be made in accordance with Process Two, as defined in Chapter 11 of the
    Land Development Code.
    Any encroachment that constitutes "development", as defined in Section 113.0103 of
    the Land Development Code, is subject to all applicable regulations of the Land
    Development Code
    (Amended 2-27-2001 by O-l8924 N.S.)
    Ch. Art Div.
    I'l'l'l
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    Page 20
    San Diego Municipal Codle Chapter 6: Public Works and Property,
    .. ....,_, * Public improvement and Assessment Proceedings
    (6-2000)
    §62.0302 Encroachment Removal Agreement
    Applications for encroachment permits shall be accompanied by an encroachment
    maintenance and removal agreement signed by the property owner. This agreement
    shall be prepared by the Permit Issuing Authority and shall contain the following
    provisions and such other provisions as may, in the opinion of the Permit Issuing
    Authority, be necessary to afford protection to the property owner, City, and public
    utilities.
    (a) The encroachment shall be installed and maintained in a safe and sanitary
    condition at the sole cost, risk and responsibility of the owner and successors
    in interest.
    (b) The Property Owner shall agree to indemnify the City with an indemnification
    agreement satisfactory to the City Manager and City Attorney.
    (c) The property owner must remove or relocate an encroachment within 30 days
    after notice by the Permit Issuing Authority or the Permit Issuing Authority
    may cause such work to be done, and the costs thereof shall be a lien upon
    said land.
    (d) For structures encroaching over or under the public right- of-way, the owner
    agrees to provide an alternate right-of-way or to relocate said City facility to
    a new alignment, all without cost or expense to the City, whenever it is
    determined by the Permit Issuing Authority that the City facility cannot be
    economically placed, replaced, or maintained due to the presence of the
    encroaching structure.
    (e) Whatever rights and obligations were acquired by the City with respect to the
    rights-of-way shall remain and continue in full force and effect and shall in
    no way be affected by the City's grant of permission to construct and maintain
    the encroachment structure.
    (f) The property owner shall maintain a policy of liability insurance in an amount
    satisfactory to the Permit Issuing Authority in order to protect the City from
    any potential claims which may arise from the encroachments.
    Remova! agreements for approved encroachment permits shall be recorded in the
    office of the County Recorder as an obligation upon the land involved.
    (Amended2-27-2001 by 0-18924 N.S.)
    Ch. Art. Div.
    ¿0
    SFP19.ÎWR ITEM 17

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    Page 21
    San Diego Municipal Code Chapter 6: Pn bUc Works and Property,
    ,,....,-.. . Public Improvement and Assessment Proceedings
    (2-2001)
    §62.0303 Encroachments Requiring City Council Authorization
    (a) Underground structures which extend into the public right- of-way farther
    than the ultimate curb line.
    (b) Structures built over the public right-of-way.
    (c) Other encroachments which, in the opinion of the Permit Issuing Authority,
    are of sufficient public interest to require City Council approval.
    (Amended 10 1-1990 by 0-17534KS.)
    §62.0304 Ramped Entries/Exits in Centre City
    Ramped entries or exits used for vehicular access to buildings in Centre City where
    ramps would extend into the public right-of- way in such a manner as to render any
    portion of the existing travel way unusable for public street purposes are hereby
    prohibited on any street identified as an activity corridor in the Urban Design
    Program. The Urban Design Program is defined in Section 62.0102 of this Article,
    and any action in denial shall be considered a decision of the Permit Issuing
    Authority and, therefore, shall be subject to appeal in accordance with Section
    62.0116 of this Article.
    (Amended 10-1-1990 by 0-17534 N.S.)
    §62.0305 Public Improvement Repair or Relocation
    The following provisions of this section shall apply unless provision is otherwise
    made by an agreement pursuant to this Division.
    (a) In the event the City is required to place, replace or maintain a public
    improvement over which the property owner has constructed an encroachment
    structure, the property owner shall pay the City that portion of the cost of
    placement, replacement or maintenance caused by the construction, or
    existence of the owner's permanent encroachment structure.
    (b) The property owner shall pay the City for all the cost of placing, replacing or
    maintaining a public improvement within a public right-of-way when the
    City's facility has failed as a result of the construction or existence of the
    owner's encroachment structure.
    (c) The costs of placing, replacing or maintaining the public improvement shall
    include the cost of obtaining a necessary alternate easement.
    Ch. Ari. Div.
    2 [ 3
    ¿\ SEP 122005 ITEM 1

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    Page 22
    San Diego Municipal Code Chapter 6: Public Works and Property, Public improvement and Assessment Proceedings
    (6-2000)
    (d) The property owner shall pay the City or public utility for all cost of
    relocating, replacing, or protecting a facility within the public right-of-way
    when such relocation, replacement, or protection results from the construction
    of the encroachment.
    ("Public Improvement Repair or Relocation " added (formerly Sec. 62.0103(f)) and
    amended8-17-1971 by O-IO660N.S.)
    §62.0306 Unauthorized Encroachments Prohibited
    (a) It is unlawful to erect, place, construct, establish, plant or maintain any
    structure, vegetation or object on Public Property or Public Rights-of-Way
    without a permit, City contract or franchise.
    ("UnauthorizedEncroachments Prohibited" added (portionspreviously contained in
    former Sec. 62.0103(a)) 8-10-1993 by 0-17958 NS.)
    Ch. Art Dtv.
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    Page 23
    3& SEP 122005 item 17

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    Page 24
    city of del mar
    memorandum
    TO: Honorable Mayor, Members of the City Council
    FROM: Tamara A. Smith, City Attorney
    DATE: September 7, 2005
    RE: Response to Article Entitled "Who Owns Our Streets and Alleys?"
    The article written by Del Mar Councilmember Carl Hilliard entitled, "Who owns our
    streets and alleys?", raises the five issues noted below. This office has prepared the
    following response for your consideration and discussion.
    1. Who owns the city streets and alleys?
    2. What is the nature of the adjacent property owner's interest in the public right- of-
    way?
    3. Is the city authorized to limit encroachments or to require adjacent property
    owners to make improvements to the public right-of-way as a condition of
    development?
    4. What is the legal effect of asking a property owner to acknowledge "city title" to
    the right-of-way?
    5. Is the city required to vacate an unused public right-of-way, and does failure to
    vacate an unused public right-of-way constitute a taking of the adjacent owner's
    property?
    1. Who Owns the City Streets and Alleys?
    California law creates a presumption that the property owner whose land is abutting a
    public street has fee title to the center of the street. Civil Code §§ 831; 1112. Civil
    Code section 831 provides: "An owner of land bounded by a road or street is presumed
    to own to the center of the way, but the contrary may be shown". Civil code section
    1112 provides: "A transfer of land, bounded by a highway, passes the title of the person
    whose estate is transferred to the soil of the highway in front to the center thereof,
    unless a different intent appears from the grant." Both of these statutes create a
    presumption that can be rebutted by evidence of a different intent. In some situations,
    ¿if SEP!%2005 item 17

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    Page 25
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 2
    the adjacent property owner does not have fee simple title to the center of the street.
    Depending upon the form of dedication and acceptance, the City may own dedicated
    property in fee.
    No matter the City's form of ownership, its right to control and regulate its property
    interest is Irrefutable, as is the public's right to use traditional public fora. "Wherever the
    title of streets and parks may rest, they have immemorially been held in trust for the use
    of the public and, time out of mind, have been used for purposes of assembly,
    communicating thoughts between citizens, and discussing public questions. Such use
    of the streets and public places has, from ancient times, been a part of the privileges,
    immunities, rights, and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515 (1938).
    See, also, First Unitarian Church v. Salt Lake City, 308 F.3d 1114 (10th Cir. 2002)
    (although city sold a portion of main street to church, the area remained a traditional
    public forum so long as it was used as a public thoroughfare); ACLU v. Las Vegas, 333
    F.3d 1092, (9th Cir. 2003) (despite complete makeover as pedestrian shopping mall,
    Fremont Street in Las Vegas was still a traditional public forum); Venetian Casino v.
    Local Joint Executive Bd., 257 F.3d 927 (9th Cir. 2001) (privately owned sidewalk
    functioned as a public sidewalk and thus was still a traditional public forum); Burson v.
    Freeman, 504 U.S. 191 (1982) (all polling places are traditional public forums).
    A city may acquire real property by gift, bequest or devise. Cal. Gov't Code § 37354;
    Cal. Prob. Code § 6102. A city may also accept an irrevocable offer to dedicate real
    property. Cal. Gov't Code §§ 7050 et seq.; Cal. Civ. Code § 1090(c). A city may only
    dispose of an irrevocable offer of dedication through summary vacation procedures.
    Cal. Gov't Code § 7050.
    A city can acquire title to property through adverse possession, in the same manner as
    a private party. Beckett v. City pf Petaluma, 171 Cal. 309, 313 (1915). A city can
    acquire an easement by prescription, granting the city the right to use private lands.
    Reinsch v. City of Los Angeles, 243 Cal.App.2d 737 (1966). A city can also acquire the
    right to use private lands by means of implied dedication. Gion v. City of Santa Cruz, 2
    Cal.3d 29, 38(1970).
    When a deed conveying property contains a metes and bounds description of the
    conveyance, and the metes and bounds description does not include any portion of the
    adjacent public street, the presumptions of Civil Code sections 831 and 1112 do not
    apply, ßesneaffe v. Gourdin (1993) 16 Cal. App. 4th 1277.
    The city or county's interest in the road or street is a public right-of-way, which is a form
    of easement. Bello v. ABA Energy Corp. (2004) 121 Cal. App. 4th 301 (citations
    omitted). The use rights of a public right-of-way are vested equally in each and every
    member of the public. Id. at 308. The city or county government administers the use of
    the right-of-way. Id.
    ¿$ SEP 12 2005 item

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    Page 26
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 3
    2. What is the Nature of the Adjacent Property Owner's Interest in the Public
    Right-of-Wav?
    The property owner whose land abuts a public right-of-way has the ability to use the
    public right-of-way as long as the property owner does not damage it or interfere with its
    use by the public. People v. Goodspeed (1948) 85 Cal. App. 2d Supp. 821. However,
    the rights of the abutting owner to a public road or street are subordinate to the rights of
    the public. Colegrove Water Co. v. City of Hollywood (1907) 151 Cal. 425, 429. In that
    case, the California Supreme Court held:
    In cities it is customary to devote not only the surface of the street and the
    space above the street to public use, but the municipality may, and
    frequently does, occupy the soil beneath the surface for the
    accommodation of sewers, gas and water pipes, electric wires, and
    conduits for railroads. Where the city undertakes to occupy the space
    above or below the surface of the street for any purpose within the scope
    of the pubiic uses to which highways may be put, the use by the owner of
    the fee must yield to the public use. Furthermore, the use by the owner of
    the fee is subject to reasonable regulation in the interest of the comfort
    and convenience of the community as a whole.
    Id. at 429-430. The court in Colegrove also noted that "the rights of the owner may
    grow less and less as the public needs increase." Id. at 430. In more recent cases,
    courts have noted that rights-of-way are increasingly being used for infrastructure as
    well as passage, in both rural and urban areas. Bello v. ABA Energy Corp. (2004) 121
    Cal. App. 4th 301, 312. Further, new services have been developed that did not exist at
    the turn of the century, such as cable television and the Internet, which add to the
    amount of infrastructure in public rights-of-way. Id.
    As a practical matter, these public uses of the right-of-way can leave the abutting
    property owner with little ability to use the property, other than for passage in the same
    manner as the rest of the public. The California Supreme Court has characterized the
    fee ownership of a public right-of-way as a "shadowy title . . . subject to all the varied
    wants of the public . . ." Montgomery v. Santa Ana Westminster Rail Co. (1894) 104
    Cal. 186, 192. In this case, the Court stated:
    The establishment of a public highway practically divests the owner of a
    fee to the land upon which it is laid out of the entire present beneficial
    interest of a private nature which he has therein. It leaves him nothing but
    the possibility of a reinvestment of his former interest in case the highway
    should be discontinued as such.
    Id. at 193.
    Dh
    SEP' 12 2005 item 1?

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    Page 27
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 4
    These authorities clarify that, as long as the public right-of-way exists, the fee ownership
    of right-of-way by the abutting property owner is essentially in name only, and has little
    significance to the actual! use of the property. Assertions that the owner of the abutting
    property "owns" the right-of-way, and not the City, are misleading when made out of the
    context of the minimal use of the property allowed by such ownership.
    3. Is the City Authorized to Limit Encroachments In or To Require Property
    Owners to Make Improvements to the Public Right-of-Wav as a Condition of
    Development?
    "[Municipalities] may prohibit and prevent encroachments upon or obstruction in or to
    any sidewalks, street, alley, lane, court, park, or other public place and provide for the
    removal of such encroachment or obstruction." Cal. Gov't Code § 38775. A city may
    regulate encroachments on public property by requiring an encroachment permit and by
    limiting improvements or permitting the encroachment under specified conditions. Del
    Mar's regulations are expressed in Del Mar Municipal Code Chapter 23.28.
    The City has broad police power authority to impose conditions on voluntary
    development, pursuant to Article XI, section 7, of the California Constitution, but that
    authority is not unlimited. A city has authority to impose conditions on development only
    in the context of a discretionary decision, and only when the conditions substantially
    advance legitimate state interests. Noilan v. California Coastal Commission, 483 U.S.
    825 (1987). The nexus required for a development condition is that the condition be
    reasonably related to the public need or burden that is created by the proposed
    development. Id. at 836. A two-part test has been established for analyzing the
    "reasonable relationship" nexus. The first inquiry is whether the type of condition
    imposed addresses the same type of impact caused by the development. Id, at 836-37.
    If the answer to the first inquiry is "yes", the second inquiry is whether the condition is in
    reasonable proportion to the burdens created by the new development. Dolan v. City of
    Tigard (1994) 512 U.S. 374.
    The types of conditions that cities can impose on developments are varied and include
    fees to alleviate impacts of a development; dedication of real property (either in fee, or
    as an easement) for a public need); and capital improvements both on-site or off-site.
    In addition to being authorized by the police power granted to the City by the state
    Constitution, some conditions, such as development fees, are specifically authorized by
    state law. Development conditions may also be authorized by local ordinance, as long
    as the local ordinance does not conflict with state laws. County of Plumas v. Wheeler
    (1906) 149 Cal. 758. Del Mar's Municipal Code contains a number of provisions
    authorizing specific conditions of development, including a number of sections in
    Chapter 24 requiring improvements, dedications and fees as a condition of development
    approval.
    SEP 12 2005 ITEM 17

    [line]




    Page 28
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 5
    It may also be argued that ordinances of uniform application requiring standardized
    improvements along property are akin to land use regulations of the same character as
    traditional subdivision zoning laws governing setback, iot coverage, building location,
    building bulk and other regulations. {See Gov't Code § 65850.) Under such a program,
    a property with a substandard frontage is essentially a legally existing non-conforming
    use. The requirement that street frontage/encroachment improvements be installed
    upon development at a certain level assures prospective application of the regulation
    avoiding an unlawful impact of a vested property right (see Avco Commun'tty
    Developers, Inc. v. South Coasi Regional Commission (1976) 17 Cal.3d 785.), while
    also assuring eventual implementation of new land use regulations equitable for all
    regulated property. Regulations of this nature are valid if they substantially advance a
    legitimate governmental purpose. (Agins v. City of Tiburón (1980) 447 U.S. 255, 261;
    Breneric Assoc, v. City of Del Mar (1998) 89 Cal.App.4th 166; Tahoe Keys Prop.
    Owners' Assn. v. State Water Resources Control Board, 23 Cal.App.4th 1459, 1479-
    1480.) In determining whether a land regulation substantially advances a legitimate
    government interest, the court uses a test akin to the deferential rational basis standard
    of judicial scrutiny. Santa Monica Beach Ltd. v. Superior Ct. (1999) 19 Cal.4th 452,
    996. The U.S. Supreme Court recently distinguished and disapproved the "substantially
    advances" test, in Lingle v. Chevron, U.S.S.Ct. (May 23, 2005).
    Under a uniform street improvement ordinance, if the owner chooses to use the
    property in a new or different manner requiring a permit, then the owner must bring the
    property into compliance with the same regulations as other owners who developed
    after the regulations became effective. In this manner, the cumulative effect of both
    new and existing development throughout the city can eventually be remedied. (See
    Tahoe Keys Property Owners' Assn. v. State Water Resources Control Board, supra, 23
    Cal.App.4th at 1479 (regulations need not be limited to burdens of individual projects
    and cumulative effects may be considered).)
    Allegations have been made that the City has a practice of imposing conditions on
    development that are arbitrary and unfair, particularly in the context of requiring property
    owners to make improvements in the right-of-way. Because these allegations have
    been made generally, rather than in the context of specific projects, it is difficult to
    evaluate them. The analysis of whether a particular development condition meets the
    two-part "reasonable relationship" test is fact driven, and can only be done on a case-
    by-case basis. However, as noted above, the City has broad constitutional, common
    law and statutory authority to impose reasonable conditions of development, including
    requiring improvements in the right-of-way. In the absence of specific complaints of
    arbitrary or unfair development conditions, there is no evidence that the City has
    engaged in a practice of imposing unlawful development conditions.
    SEP IS2005 item

    [line]




    Page 29
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 6
    4. What is the Legal Effect of Asking A Property Owner to Acknowledge "City
    Title" to the Riqht-of-Wav?
    It is standard practice for the City to require recordation of a covenant to document the
    terms and conditions of an encroachment permit, to allow private improvements in the
    public right-of-way. The covenant contains language that the public easement is "City
    property" and that the property owner acknowledges that "title to the City property to be
    in the City." Concerns have been raised that such an agreement results in a transfer of
    the property owner's fee ownership interest to the City and, therefore, a "taking" of the
    owner's property.
    There is no legal authority that supports the argument that the language in this
    agreement results in a transfer of the fee ownership of the right-of-way from the
    adjacent property owner to the City. The term "title" is a generic term, and can be and is
    used to describe various types of property interests other than fee simple title, including
    easements. Thus, the modifier "fee" is used to distinguish from other kinds of title. The
    word "title" itself is not defined in state law; however, there are state statutes from which
    It can be inferred that "title" is a generic term not intended to be limited to fee ownership.
    "Title by occupancy" is governed by Civil Code section 1006, which provides,
    "Occupancy for any period confers a title sufficient against all except the state and those
    who have title by prescription, accession, transfer, will or succession; but the title
    conferred by occupancy is not a sufficient interest in real property to enable the
    occupant or the occupants privies to commence or maintain an action to quiet title,
    unless the occupancy has ripened into title by prescription (emphasis added)." The
    italicized language confirms that the use of the term "title" in this context means an
    interest lesser than fee ownership.
    Therefore, the effect of the encroachment agreement in which the property owner
    acknowledges City "title" to the public right-of-way, is simply an acknowledgement of the
    City's easement interest in the right-of-way and does not result in a transfer of the
    property owner's fee interest to the City. The generic nature of the term "title is used in
    the covenant form so as to facilitate the use of the covenant for whatever the actual
    form of title or ownership.
    5. Is the City Required to Vacate an Unused Public Right-of-Wav, and Does
    Failure to Vacate an Unused Public Right-of-Way Constitute a Taking of the
    Adjacent Owner's Property?
    Finally, an issue has been raised about rights-of-way that are not used, and whether the
    City has a legal obligation to vacate those rights-of-way for the benefit of the adjacent
    property owner. The answer to that question is no. Vacation of a public easement by
    the government agency is a discretionary, rather than a mandatory action.
    SEP 122005 ITEM 17

    [line]




    Page 30
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 7
    It is a longstanding principle that mere non-use does not result in abandonment of a
    dedicated public property, including public right-of-ways. Board of Education v. Martin
    (1891) 92 Cal. 209, 216; Archer v. Salinas City (1892) 93 Cal. 43; Humboldt County v.
    Van Duzen (1920) 48 Cal. App. 640. A public right-of-way can only be terminated by
    action of the government; agency.
    Vacation of public streets and easements in California is governed by Streets and
    Highways Code sections 8300 et seq., known as the Public Streets, Highways, and
    Service Easements Vacation Law. According to that statutory scheme, vacation is a
    discretionary action of the public agency, and specific procedures must be followed by
    the agency before a street or easement can be vacated. Section 8324(b) provides:
    (b) If the legislative body finds, from all the evidence submitted, that
    the street, highway, or public service easement described in the notice of
    hearing or petition is unnecessary for present or prospective public use,
    the legislative body may adopt a resolution vacating the street, highway,
    or public service easement. (Emphasis added).
    It is clear from the use of the term "may" in this provision that even when the City
    Council finds that the easement is unnecessary for present or future use, the vacation of
    the easement is purely discretionary.
    The "takings" doctrine requires payment of just compensation when the government
    inversely condemns private property, pursuant to the 5th Amendment to the United
    States Constitution, and Article l? Section 19, of the California Constitution. First English
    Evangelical Lutheran Church v. County of Los Angeles (1987) 482 U.S. 304. A
    compensable taking claim can result from the physical taking of private property by the
    government, or from a taking of property that is the result of application of a government
    over-regulation to the property. In order to assert a regulatory taking, a property owner
    must make a showing of ripeness. Williamson County Regional Planning v. Hamilton
    Bank of Johnson City (1985) 473 U.S. 172. That showing requires that a final
    determination has been made by the government agency about application of the
    regulation to the property in question, such as rejection of a development application.
    McDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340.
    These cases demonstrate that to assert a regulatory taking, the plaintiff must show that
    the government agency has taken some affirmative action, by physically taking the
    property, or by wrongfully applying a regulation to the property. There is no legal
    authority that supports the argument that inaction, such as the failure to vacate an
    unused easement, constitutes a compensable "taking" of private property. Therefore, it
    remains the prerogative of the City whether or not to vacate unused public right-of-
    ways, and failure to do so does not constitute a taking of private property.
    ¿o
    JU f

    [line]




    Page 31
    Honorable Mayor, Members of the City Council
    September 7, 2005
    Page 8
    Moreover, the use to which the government may put the property is more expansive
    than mere use as a street, highway, alleyway or pedestrian easement. See discussion
    of Colegrove Water Co, v. City of Hollywood, supra, in Part 2, above.
    CONCLUSION:
    Encroachment permits are a long-standing method of protecting the public's paramount
    right to utilize streets, highways, alleges, roadways, or other rights-of-way. The courts
    have recognized a governmental right to regulate and condition the use of public rights-
    of-way, and the failure of the City to vacate unused rights-of-way is not a taking of
    property.
    a. SEP 122005 item 17

  14. #14
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    Mike wrote:
    apjonas wrote:
    4. I have not heard of a state gunfree school zone law being overturned, for any reason, can you provide an example?
    A constitutional defense of lawful purpose would be available under Hamdan-Vegas.
    There really isn't such a defense. The court had a three-pronged test (1) private interest greater than public interest (2) no other option (3) no unlawful purpose. So even if a lawful purpose existed you would still need to jump over (1) and (2).

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    Mike wrote:
    apjonas wrote:
    3. It doesn't matter what the DA or other official tells you. It won't save your bacon if you are charged.
    Mistake of law defense would be available.
    "Mistake of law" is not a defense to a criminal charge (ignorance of the law......) unless we're talking unconstitutional vagueness. You could try "mistake of fact" (hey I didn't know it was a school zone....there's nothing but factories here...)

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    Teej wrote:
    GFSZ was '91.

    RKBA was '98.
    One thing to learn from Hamdan is that more recent (Art. 25) does not always trump less recent (941.23).

  17. #17
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    There really isn't anything to trump. Article I section 25 addresses the right to carry. 941.23 addresses a manner of carry. As the SSC stated 941.23 is constitutional because there is an alternative manner of carry by which the people can exercise the right given by Article I section 25;visible carry. In Hamdan the SSC referred to the two manners of carry as hidden and visible. The constitutionality of 941.23 because it is a restriction on the manner of carry and not the right to carry was re-affirmed by the SSC in para. 28 of State v. Phillip Cole.

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    apjonas wrote:
    "Mistake of law" is not a defense to a criminal charge
    huh? Go back to the horn book my friend.

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    I have a school zone question. If I drive to a business that is within 1000 feet of a school, park in the business lot, and carry in the business does it matter if I am within 1000 feet of a school? I would have observed all the correct transport laws while on the public roadway and if a business is considered private property, then my thoughts are that I would be okay. I can provide a specific area and business if it would help.

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    gila wrote:
    I have a school zone question. If I drive to a business that is within 1000 feet of a school, park in the business lot, and carry in the business does it matter if I am within 1000 feet of a school? I would have observed all the correct transport laws while on the public roadway and if a business is considered private property, then my thoughts are that I would be okay. I can provide a specific area and business if it would help.
    You would be legal, because you are on private property.

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    You would be legal, because you are on private property.[/quote]

    Thanks! That was what I was thinking, however, I wanted to throw the question out there. I imagine it doesn't matter if the business is located in a strip mall? The school zone rule really only applies to regular roads and sidewalks, correct?

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    You help make my point. It was argued by Hamdan (and at least one judge agreed) that the adoption of 25 essentially wiped out 941.23. The final ruling was that 941.23 could not be applied to Hamdan's case but generally was still valid. Cole was prior to Hamdan and rejected a facial challenge. Hamdan was an "as applied" decision. Unfortunately, you can only find out whether you're protected by the constitution, after the fact.

    Lammie wrote:
    There really isn't anything to trump. Article I section 25 addresses the right to carry. 941.23 addresses a manner of carry. As the SSC stated 941.23 is constitutional because there is an alternative manner of carry by which the people can exercise the right given by Article I section 25;visible carry. In Hamdan the SSC referred to the two manners of carry as hidden and visible. The constitutionality of 941.23 because it is a restriction on the manner of carry and not the right to carry was re-affirmed by the SSC in para. 28 of State v. Phillip Cole.

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    Mike wrote:
    apjonas wrote:
    "Mistake of law" is not a defense to a criminal charge
    huh? Go back to the horn book my friend.
    I prefer the "Nutshell" series. Ok, since I didn't qualify my statement, I will yield to you on this point. Let me say that "mistake of law" is very, very rarely a defense to a criminal charge. In the situation we are discussing, a letter from the local district attorney stating that sidewalks are not part of the GFSZ is not likely to stop a prosecution, particularly by the feds. Would you rely on such?

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    Lammie-

    One thing to note is I actually live on a county trunk (the old Chicago-Green Bay Military Road), and some county and state roads are indeed owned publicly. I did what you did and looked at my deed, and as far as I can tell, I do not own the land under the road in front of my house, but I do own to the center of the side street where my garage is located. Id like to get a surveyor to weigh in on this, as well.

    Funny story:long before I bought the house, they had moved Hwy 33's route locally, and the measurements for my property were all based off the old location. It had been like that for decades, changed hands several times, and no one had noticed! It was like pulling teeth to get the idiots at the title insurance company to change it, too.

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    Rick:

    So far I have concentrated on Town roads and City streets. They are the ones that would affect most of us. The evidence is pretty stong that the towns and cities own the easement which they use to create a PROW (public right of way). The property itself is fee title owned by the adjacent property owners ( defined in various documents as "Freemen") which in my opinion make the city streets, town roads, sidewalks and boulevards in front of residences andbusinesses private property. The document from Del Mar California supports that theory.

    It is possible that most county, state andfederal roads,as well as freewaysare on land actually purchased for the purpose, similar to the way the railroads bought up land in the 1800's. Railroad property, of course, is privately owned. However, land purchased by the mentioned goverment units would be considered public property and off limit to firearm carry if within 1000 feet of the specific schools the statute 948.605 applies.

    The search goes on. Unless it is me I am surprised on how difficult it is to find a definitive answer to the question.

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