The City of Livermore issued a compliance order to residents along Lomitas Avenue last week, but the group plans to appeal, claiming the city has no right to demand they fund a public project.
A wall alongside the public sidewalk on Holmes Avenue, which backs up to the properties of homes with Lomitas Avenue addresses, is in disrepair. The city is requiring the homeowners to stabilize the slopes on their properties prior to April 20, noting a land-use nuisance. Those affected must choose from three options: stabilize their slope using the city-provided engineering solutions; obtain their own engineering solutions, which must be approved by the city; or allow the city contractor to perform the work at a cost of between $57,506 and $112,836, paid in full or through a fixed-rated 10-year Treasury Bond Note.
Attorney Peter MacDonald, who is working with residents Pam and Kirk Pope and a handful of their neighbors, said the project of replacing the wall is a public one, and the city is not within its rights to ask private homeowners to pay for it.
“We got a compliance order from the city telling us to basically do it or they’re going to abate the nuisance on their own and put a lien on the property,” MacDonald said. “They’re basically trying to force an adjacent property in order to pay for, for this stretch, two-thirds of the cost of a city project. They’re also condemning a slope easement on (the Popes’) property that doesn’t exist; a city doesn’t have the right to insist on a slope easement. Pam and Kirk Pope are not willing to pay for the cost of a city project on their property that would cost them $170,000 and the loss of about 10 feet of their property.”
Prior to the city’s issuance of the compliance order last week, the Popes and a handful of neighbors had signed a petition, indicating they were willing to sign right of entry, allowing the city to perform the project as planned on the lots, as long as the city confirms it will bear the expense.
“They’re really doing a different wall than the wall that was initially put there,” MacDonald said. “It’s a different wall that requires different engineering and among other things, a slope easement and $170,000 worth of retaining walls that are needed to protect the city project, which, again, should be a city cost. Livermore staff is trying to hoist off the cost of a public project on innocent adjacent property owners.”
But Livermore City Attorney Jason Alcala said the project’s history is more complex and goes back to 2014, when the city began working with residents to address soil loading and deterioration of the public right-of-way due to insufficient private property care. He noted the matter to be a public nuisance, which the city has worked to help address with a variety of options offered to the property owners.
“The wall (on Holmes Avenue) had been failing for a number of reasons,” Alcala said.
He listed those reasons to be age, eroding soil, damage by private and public trees and the fact that property owners had affixed things such as trellises, rabbit hutches and other personal items that required drilling into the wall. He noted a number of other property owners in that area had installed retaining walls on their side of the property over the years to prevent the slope from creeping into the public right-of-way.
The city had reviewed options to address the matter, including which types of fencing to build. One option was to follow Hayward’s lead and simply take down the crumbling wall without replacing it.
“Our city leadership, both staff and the council, didn’t really like that option,” he said. “We thought we could do better.”
He stated the city provided options to the residents and said the residents whose properties were in need of repair could use the city’s engineering study or fund their own privately. They were allowed to utilize the city contractor.
“Now we get down to the issue of how it gets accomplished, as there could be a financial hardship,” Alcala said. “The city said it would help them, using funds available through the city, which would have to be repaid because it’s for private improvement, and public funds can’t be used for that. But we said we could make it available to (them) should (they) need financial options … We created an opportunity to help private property owners, and it’s being turned around and twisted against the city, and that’s why I’m concerned with the messaging.”
But MacDonald asserted there is no dirt piled against the city masonry wall behind the Pope’s house, and claims the wall has not been damaged in any way by the homeowners’ current use of their own property.
“These properties and their owners have paid property taxes and sales taxes to the city since the early 1970s,” MacDonald wrote. “These homeowners, in fairness and in law, cannot be required to shoulder the cost of maintaining and upgrading (if a wood fence is an upgrade from a masonry wall) the city’s arterial street.”
Alcala added that he hopes it will not come to legal action to gain compliance.
“We’d rather not be in a situation of suing homeowners to help them,” he said. “I would like to say we appreciate working and collaborating with the neighborhood. I think there’s
been a recognition that this is a challenging issue to solve … it’s just unfortunate that we have some hesitancy now that we’re actually at the point of moving forward.”