When it comes to a wall in Livermore, a handful of residents and the city remain quite divided.
At least seven property owners impacted by the Holmes Street wall replacement program have refused to sign the city lien and right-of-entry documents presented by city staff, according to attorney Peter MacDonald. The City of Livermore issued a compliance order May 27, which a group of residents appealed in the following weeks. But MacDonald — working with Pam and Kirk Pope, Rick Bolanos and a handful of their neighbors — further stated that a COVID-19 emergency ordinance adopted by the city in April hamstrung the property owners’ ability to appeal the compliance order. While their property issues vary, he noted that one of the main concerns has been this inability for the owners to go through a normal hearing process, as the pandemic has taken away the right to appeal.
“The city staff is saying the emergency COVID ordinance takes away the right to appeal a compliance order,” MacDonald said. “The difference is, if you wait until there’s an abatement order, which staff says you have to do, at that point the appellant is subject to $100 per day in accumulating fines while the appeal is pending; (the appellant) is not entitled to an impartial hearing officer. And if he loses, he pays the entire city cost of the appeal.”
In response, City Attorney Jason Alcala pointed to current city Ordinance No. 2096, an ordinance regarding neighborhood nuisance abatement in the Livermore municipal code.
“It appears that Mr. MacDonald’s grievance is that the hearing officer is a neutral third party rather than the city council,” Alcala said. “However, the law does not require the city council to be the hearing officer. While the ordinance includes protections to ensure equal treatment, it appears Mr. MacDonald is seeking an audience before the city council to advocate for special treatment. That is inappropriate. It is also why the law supports a review by a neutral third-party hearing officer.”
Alcala went on to state MacDonald’s focus on the Urgency Measure, Ordinance 2094, was misplaced, as that ordinance expired when it was superseded by Ordinance 2096, which enacted Chapter 8.15 Procedure for Abatement of Public Nuisances and includes a comprehensive hearing process before a neutral third-party administrative hearing officer.
The reason for the replacement program is that the wall, which backs up to the properties of homes with Lomitas Avenue addresses, is in disrepair. The sidewalk facing Holmes remains closed to public foot traffic. Alcala listed reasons the wall is failing 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.
Alcala explained the conversation about the wall started in 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 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. Alcala stated the matter to be a public nuisance, which the city has worked to help address with a variety of options to the property owners.
But MacDonald is certain rabbit hutches couldn’t destroy a concrete wall, nor could incidental accumulation of soil. A redwood fence is set to replace the original wall.
“The wall needs replacing, because it’s 50 years old. It’s been hit by probably 100 cars over the years. The city trees and tree roots are bending the wall in every direction,” MacDonald said. “This program was undertaken because staff informed the council that they could build a flimsy wood fence at the property line and tell the property owners, ‘this is yours to maintain in perpetuity.’ That is simply false and incorrect; it’s just not the law.”
Livermore Mayor John Marchand has been in discussion with MacDonald on the matter, but asserts it’s not merely an “incidental accumulation of soil.”
“If you drive past where the wall has failed, you will see that homeowners had piled dirt three to four feet deep against the wall, which is only a decorative wall and not built to hold back such a significant soil surcharge,” Livermore Mayor John Marchand said. “The city has tried to negotiate with members of the neighborhood to remove and contain the soil, which has adversely impacted the wall for over seven years without resolution. The city has received many complaints about the condition of the wall and the sidewalk has been closed. This has been an eyesore and a hazard for years, and the time has come to get it fixed. Even a cursory look will demonstrate that this is a substantial fence, and not flimsy, as Mr. MacDonald claims. It is a vast improvement over the existing ugly and crumbling wall.”
One of the residents, Pam Pope, said she and her husband, Kirk Pope, have tried working with the city. Kirk owns a fence company and was prepared to abate the issue, until they saw the price tag of $67,000.
“My husband said they’re way over engineering it,” Pam said. “They’re calling for the posts to be placed 13 feet deep; you don’t need them 13 feet deep. When we asked the city why, they said because they know it will work, but so will posts 6 feet deep.”
Pam added that, in their 27 years of living on Lomitas Avenue, the retaining wall has been hit by cars four times.
“It’s the city’s responsibility to maintain this wall because it’s an arterial thoroughfare,” she said, adding the city’s plans for grading run into her property. “We have a small sidewalk between the fence and our pool, and (the city) wanted to grade all the way in there; we don’t want them to come in and ruin our property … That sidewalk has been closed for six, seven years, and now all of a sudden, it’s an emergency to get this done? … They haven’t listened to us at all.”
The residents continue to urge the city to reconsider its approach on how to rebuild the wall.
Added Pam’s neighbor, Bolanos, “What we feel is disappointment, and the big thing to swallow is changing the responsibility from the city to the homeowners for this fence.”
Alcala noted he’s not typically involved in the informal compliance process, but believes enforcement staff in the Neighborhood Preservation Division is nearing the conclusion of the information enforcement process for some of the properties.
“For those properties, the enforcement team has extended an invitation to meet with each of the affected property owners at their respective properties to review the specific issues related to their properties,” Alcala said. “If the nuisance is abated, or the field review shows that the conditions have been resolved for compliance, then the enforcement action will cease. If the nuisance is not abated, then the process may proceed to formal enforcement, which is the time when the Neighborhood Preservation Division refers the matter to the city attorney’s office for enforcement.”