Les Earnest

12769 Dianne Drive; Los Altos Hills, CA 94022

Email les@cs.stanford.edu                              Phone  650-941-3984

 

2005 July 21

 

Town Council

Town of Los Altos Hills

26379 Fremont Road

Los Altos Hills, CA 94022

 

Subject: Public Roads and Paths, Private Roads and Driveways

 

References:

[1] Municipal Code, Town of Los Altos Hills, http://www.bpcnet.com/codes/losaltoshills.

 

[2] John D. Bakker (Assistant City Attorney), "Dedication and acceptance of pathway dedications; Todd Lane and definition of public road", memo to Pathways Committee, 11/22/04.

 

 

Dear Mayor Breene Kerr, Craig Jones, Jean Mordo, Mike O’Malley, and Dean Warshawsky:


I recommend that the Council act to resolve existing inconsistencies in the use of terms such as “public road” and “private road,” both in the Municipal Code and general usage, which is a prerequisite to developing a comprehensive Master Path Plan. This note reviews the background of these issues and suggests a possible way to resolve them.

 

I will be happy to discuss these matters at a Council meeting as well as by email or telephone. If you agree with me that more consistent terminology is needed then I expect you will want to have the Town attorney reexamine these issues and make specific recommendations.

 

BACKGROUND

 

Over a year ago, while doing research on public roads and paths, I noticed inconsistencies between definitions of "Public Road" and "Private Road" in different sections of the Town's Municipal Code [1] and with the use of those terms by Town Staff and the Pathways Committee. Because these definitions bear directly on public access to certain roads and paths, I brought these and certain other questions to my colleagues on the Pathway Easement Ad Hoc Committee (a.k.a. the Map Committee) and then to the Pathways Committee. The latter then requested legal advice via the Council, who in turn requested the Town attorney to review this matter.

 

Last November a responding memo was issued [2] but for some reason it was kept secret from members of both the Pathways and Map Committees. When I learned of its existence a few months ago I requested that the Council release it and you did.

 

Upon reading [2], I found that it clarifies the public access rights under California Law and points the way to a possible resolution of existing inconsistencies in the Municipal Code. I subsequently brought these matters back to the Map Committee, then to the Pathways Committee. On 6/27/2005, following a harangue from me, the Pathways Committee unanimously adopted the following resolution.

Pathway Committee requests Council to review the issue of Public and Private roads.  Les Earnest has identified many inconsistencies in interpretation of this issue, so legal counsel may be required. Council should made appropriate adjustments to our Municipal Code.

Thus I bring this matter back to the Council and hope that it can be resolved soon.

 

INCONSISTENCIES

Here are some relevant excerpts from the Municipal Code together with my observations of inconsistencies.

 

Sec. 9-1.258. Road, private.

“Private road” means a road, way, or street in private ownership and under private maintenance, not offered for dedication as a public road, way, place or street, which affords the principal means of access to one or more lots or parcels which do not have frontage on a public street.

This says private roads are those “not offered for dedication” whereas past practice has been to consider private roads to be those that have not been accepted for dedication as a public road. The above definition implies that roads offered for dedication but not accepted by the Town are public. However, [2] defines a Public Road as a road with either a statutory or common-law public easement, which broader still. Thus there is a three-way inconsistency here.

 

Sec. 9-1.259. Road, public.

“Public road” means a road dedicated to and maintained by the City, the County, or the State, including roads offered for dedication to the City which have been improved, or for which an improvement security is in effect to improve the same. The term includes “city road,” “accepted road,” “accepted public road,” and “dedicated road.”

This is consistent with past usage by Town staff and committees but is what [2] calls a public road with statutory dedication, hence it excludes common-law public roads and so is inconsistent with California Law.

 

Sec. 10-1.241. Road, public.

“Public road” shall mean a road which has been dedicated or deeded to the public for public use and which road may or may not have been accepted for maintenance

This is not consistent with either Sec. 9-1.259 or past usage in that it includes roads with common-law implied-in-fact public easements, as defined in [2]. Given that this definition is different from common usage as well as from Section 9-1.259 and [2], there is a three-way inconsistency here.

 

Sec. 10-1.216. Driveway.

“Driveway” shall mean a private way or route for use by vehicular traffic leading from a parking area, house, garage, or other structure to a public or private right-of-way, and serving no more than two (2) parcels or lots.

This definition implies that any private vehicular route serving more than two parcels is a private road. On this basis there are many private roads in town that have no names and have been viewed as driveways. According to this definition they should be recognized as private roads.

POSSIBLE RESOLUTION

I believe that the principal inconsistencies cited above can be resolved by recognizing the broader definition of Public Road given in [2], including common-law public roads and suggest that the Municipal Code be revised accordingly. Here are some definitions that I believe are consistent with California Law as reviewed in [2].

1. A Statutory Public Easement is an easement that has been offered for public use and accepted in accordance with the Subdivision Map Act (California Government Code Section 66477.1).

2. An Implied-in-fact Dedication can be brought about by the filing of a map indicating areas that will be devoted to public use or where streets or other areas are laid out on the ground and lots are purchased by buyers in reasonable reliance that these areas will be available for their use, as determined by the courts.

3. An Implied-from-public-use Dedication can have been brought about prior to March 4, 1972 by continuous, notorious and adverse use by the public for a period of five years or more or, after that date, if a governmental entity has made visible improvements on the land or has cleaned and maintained it in such a manner that the owner should know of the public use and that the use and maintenance continue, without efforts on the part of the owner to restrict the use and maintenance, for a period of five years or more (Civ. Code Section 1009(d)).

4. A Common-law Public Easement is an easement with either an Implied-in-fact or Implied-from-public-use Dedication.

5. A Public Easement is either a Statutory Public Easement or a Common-law Public Easement. The Town is obligated to maintain only roads or paths within Statutory Public Easements.

6. A Public Road is a vehicular route within a Public Easement.

7. A Public Path is a path within a Public Easement.

8. A Private Road is a vehicular route serving more that two parcels that is not a public road.

These definitions are admittedly more complicated that the existing (inconsistent) definitions in the Municipal Code but appear to be consistent with California Law. Once these issues are resolved, one way or another, the Map Committee will need to review and revise some of its earlier work.

 

RECOMMENDATION

 

I recommend that the Council call upon the Town Attorney to review the issues described above and develop suitable amendments to the Municipal Code. There will inevitably be trade-offs between conciseness and legal completeness. I trust that consistent definitions can be developed and hope that they might be more concise than those suggested above.

 

Sincerely,

 

Les Earnest