Under the wire

[ICE]

This pool was approved in 1987.

 

[chris kennedy]

And is a violation of ???

 

[ICE]

Edison will not allow anything in their easement. That easement is typically 5' each side of a property line. People crowd the easement and build right up to it. Then the pole leans and they are under a 12,000 volt line. Edison has another rule that goes beyond the easement which states that no part of a pool shall be under a 12,000 volt line...no matter what the cause.

If I can get there I will get a measurement to the wall.

 

[TheCommish]

Edison shoud stop putting wires in the back yards, we stopped doing that in the NE long ago

 

[mark handler]

I am more concerned about the building, under the wires, than the pool.

 

[conarb]

Edison will not allow anything in their easement. That easement is typically 5' each side of a property line.

The property owner owns the property, with an easement the utility has the right to use the property for the specified use plus access for service. I don't see that it's any of the building department's business if an owner infringes upon an easement, that's a civil matter between the owner of the property and the holder of the easement rights.

If you decide to challenge this what code section are you going to cite?

 

[mark handler]

Dick

It depends on how the easement is written.

An easement is giving up the rights to the "land", A legal issue.

We can not issue a permit if the owner does not have the legal right to build there.

The easement may have been given "after" the construction.

 

[conarb]

Mark:

An easement is for a specific purpose and nothing else, in this case it's a utility easement for wires, the easement also entails the maintenance of the wires. Legally one could build on the easement if the structure didn't block the wires, since running wires at some point requires maintenance it's the maintenance part that stops people from building on them. If you built over an easement the easement holder could make you tear it down to come in and maintain their rights under an easement.

In a classic case if you cut across my lawn every morning on your way to work after 7 years you gain a perspective easement to walk across my lawn, but that doesn't stop me from growing my lawn there; however, I can't go plant thorny rose bushes on your path of travel to impede the exercise of your right to cross my lawn. After all, it's the property owner who is paying the taxes on the land, not the easement holder.

But you are right, the wording on the easement may be determinative, like "swimming pools or other structures can't be built in the easement". In any case I don't think it's the business of the building department absent a city ordinance addressing setbacks from easements.

 

[mark handler]

Dick

you need to talk with a Real Estate Lawyer

I cannot issue a permit if the owner has no legal right to build there.

 

[ICE]

If you decide to challenge this what code section are you going to cite?

I will not cite this property. At the most, I could only notify Edison.

 

[conarb]

Dickyou need to talk with a Real Estate Lawyer

I cannot issue a permit if the owner has no legal right to build there.

Mark:

I've been involved in a few or these over the years:

An easement is a non-possessory right of use and/or entry onto the real property of another without possessing it.Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed.

The owner of the property has all ownership rights to the property, note that the easement holder can go to court and bring a civil action and "a court may order the obstacle removed".

I certainly wouldn't advise a property owner to build on an easement; however, if he does the holder of the easement's remedy is to go to court and prove that his rights are being blocked, the court may decide that the obstacle must be removed, or it may rule that the power lines could reasonably be serviced over the pool. The owner of the property does have a right to build there, it's not wise because a court may rule that he has to remove the structure.

Before you prevent someone from building on their own property I suggest you consult with your city attorney.

 

[mark handler]

Dick

I have consulted the attorneys, they are the ones that told me not to issue permits in easements without the approval of the utility.

Some easements, especially those written after the structures were built, allow for structures to be in the easement.

I am very aware of the requirements. I deal with it on a regular basis.

 

[conarb]

DickI have consulted the attorneys, they are the ones that told me not to issue permits in easements without the approval of the utility.

Some easements, especially those written after the structures were built, allow for structures to be in the easement.

I am very aware of the requirements. I deal with it on a regular basis.

Mark:

It is true that AHJs do defer to the requirements of utilities, I question the legality of that, other examples are permit requirements that contractors have Workers' Comp, while I agree with it I question the authority AHJs have to aid other agencies of the state in enforcing their requirements. We have a big dispute going on here now, PG&E is under a lot of pressure to maintain it's pipelines after the big San Bruno explosion, they have elected to clear obstructions from their easements in advance of future maintenance, unfortunately cities have planted trees on the easements through downtown streets and they have notified the cities that they will be cutting down the trees (actually they could tell the cities to get the trees off their easement since most have been planted recently), there has been a huge hue and cry from residents and cities wanting to maintain the trees and their shade and ambiance. The last I read some kind of settlement was being negotiated to keep everyone happy, but if this does go to court the decision (if it went to appeal) would give some guidance as to the rights of owners and easement holders. This is a real example of health and safety vs. aesthetics.

 

[mark handler]

Landscaping is not a structure and not covered under the Building code.....Not my call

 

[conarb]

Landscaping is not a structure and not covered under the Building code.....Not my call

Mark:

If you deny the right of a property owner to use a portion of his land what section of the code are you going to cite?

 

[mark handler]

Mark:If you deny the right of a property owner to use a portion of his land what section of the code are you going to cite?

Easements holders have legal rights to your property, I tell them to provide a letter from the easement Holder that they can build in the easement.

Have you ever researched "prescriptive easements"? People do not even need your permission to use your land.....and it is protected by the courts

 

[steveray]

Our chapter 1 is unique to us, but I would start with something like this Dick.....If you know the conditions of the easement and knowingly issue a permit in violation of that, the building dept would be in violation and potentially open themselves up to legal action...

R102.2 Other laws.

The provisions of this code shall not be deemed to nullify any provisions of local, state or federal law.

R105.4 Validity of permit.

The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid. The issuance of a permit based on construction documents and other data shall not prevent the building official from requiring the correction of errors in the construction documents and other data. The building official is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction.

R105.6 Suspension or revocation.

The building official is authorized to suspend or revoke a permit issued under the provisions of this code wherever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code.

 

[conarb]

Easements holders have legal rights to your property, I tell them to provide a letter from the easement Holder that they can build in the easement.

So you are going to play judge and jury in what could be a civil dispute? How do you know if the easement is still valid or has been abandoned? An easement holder only has the enumerated rights, a judge may determine that the entire easement is not necessary for the exercise of those rights and the owner can build on a portion of that easement. If the owner can't use his property, subject to usage under the easement, he can't be forced to pay taxes on that property, determinations like yours could invite litigation to shift the tax burden from the owner to the easement holder.

Have you ever researched "prescriptive easements"? People do not even need your permission to use your land.....and it is protected by the courts

I just gave an example of a prescriptive easement in my example of walking across the lawn, and to determine the current validity of any easement takes evidence in a court of law.

Our chapter 1 is unique to us, but I would start with something like this Dick.....If you know the conditions of the easement and knowingly issue a permit in violation of that, the building dept would be in violation and potentially open themselves up to legal action...

If you are going to start enforcing civil law maybe you ought to enforce all civil law, in fact if you do determine that an valid easement exists the applicant has a right to assume that your determination covers all easements, so you better determine if there are any prescriptive easements across the property. Home inspectors get themselves in this box all the time when they start citing building codes in their reports, if they do anyone relying upon their report has a right to assume that they are experts on building codes and have listed all building code requirements.

 

[conarb]

After Chop Keenan's $36 million judgment against the City of Half Moon Bay for determining that his project set on wetlands, denying him the use of his property, cities should be very careful about making extra-judicial determinations denying people the use of their properties.

City leaders who have conferred since the ruling with potential appellate attorneys and financial advisers said the options that are emerging for Half Moon Bay are bleak.Even gutting city services probably wouldn't save enough money, Councilwoman Naomi Patridge said. Paying the judgment probably would require passage of a huge bond issue or a sell-off of city property, Mayor Bonnie McClung said.

"One of the options, candidly, is ... to dissolve," said county Supervisor Rich Gordon, whose district includes Half Moon Bay and who has been in on some of the City Council's discussions. "That's an extreme. But when you get a judgment of $36 million plus legal fees ... even if you were able to finance it and stretch it out over a period of time, you would need significant reductions in your level of service to pay that off."

Dissolving the city would be unprecedented in the Bay Area, County Counsel Michael Murphy said, and ultimately would be a lengthy process that would require the approval of a special county entity.

Alternatively, Half Moon Bay could contract out some services such as police protection or park maintenance to the county, Gordon said. But it's unclear whether that would really be cheaper.¹

This was a Federal Court decision by Judge Vaughn Walker, the same judge who ruled Prop 8 unconstitutional, a very liberal judge who found the city's actions outrageous.

BTW, the case sets mandatory precedents in Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma counties. In other counties it sets persuasive precedents. The case was settled without Half Moon Bay going Chapter 9 or disincorporating.

¹ http://www.sfgate.com/bayarea/article/Half-Moon-Bay-grapples-with-36-8-million-3234399.php

 

[mark handler]

Yes Dick we do sometimes get involved in civil matters that are building related.

We ask the applicant get a clearance letter from the utility if we know of an easement. the utility does have "legal" land rights.

 

[conarb]

We ask the applicant get a clearance letter from the utility if we know of an easement. the utility does have "legal" land rights.

Mark:

Depending upon the language in the deed those rights are usually limited to running and maintaining their utilities, all other rights are reserved to the owner/tax payer.

 

[mark handler]

Markepending upon the language in the deed those rights are usually limited to running and maintaining their utilities, all other rights are reserved to the owner/tax payer.

That is right.

But, Both parties to the easement have legal rights.

All rights must be protected

 

[mark handler]

Here is a case where a neighbor refused to grant an easement

http://www.latimes.com/local/la-me-power-problems-20140707-story.html

No electricity in new Woodland Hills home leaves him feeling powerless

Kent Fuller's new house has three bedrooms, a loft and a drive-through basement garage that is roomy enough for four cars.

What the recently completed Woodland Hills residence doesn't have is an electric line attached to it.

His next-door neighbor has refused to grant an easement so the Los Angeles Department of Water and Power can run a power line across his backyard and hook up Fuller's house.

"It's put us in kind of a pickle," said Fuller, who with his mother has invested about $750,000 in the lot and the turreted three-story house.

I thought the DWP would provide electricity like it has for every other house around here.

- Kent Fuller

"They say that my only option is to pay for an underground line that would go beneath the Ventura Freeway and connect to power on the north side of it."

And before the DWP starts digging, it wants Fuller to pay the $28,000 trenching bill.

Fuller and his 72-year-old mother, Linden Logan, say they've sunk every penny they have into the house and can't even borrow on it because it lacks electricity.

Logan, a visiting nurse who lives in West Los Angeles, bought the lot at the corner of Avenue San Luis and Shoup Avenue in 2003, with an eye toward building her retirement home on it.

"I wanted a place that my grandkids could stay when they come to visit," Logan said.

Her son started construction in 2008, operating power tools through a temporary line connected to a street lamp across Avenue San Luis. The city's Department of Building and Safety signed off on the construction and issued a certificate of occupancy in mid-2012.

Since then the house has relied on the temporary line for its lights and appliances, although the amperage is insufficient to operate its air conditioning, washer and dryer. The temporary power pole is in the middle of the home's entryway sidewalk.

Complicating things, the DWP has instructed Fuller to disconnect the makeshift line since the home is no longer under construction.

Fuller said the title search done when the lot was purchased did not disclose any issues involving electric power.

"I thought the DWP would provide electricity like it has for every other house around here," said Fuller, 45, also a West Los Angeles resident. Homes along Avenue San Luis are served by power poles placed at their back property lines. Fuller has connected the house to water, sewage and gas utilities.

He assumed that power officials would place a pole in his backyard to connect with a 200-amp panel that he positioned at the rear of the dwelling.

At first, neighbor Eric Fox seemed willing to grant the DWP an easement. But Fox's house is owned by a family trust, and other members of the trust balked at having a power line cross the backyard.

"Our research and discussions with real estate attorneys showed running the power through my yard would devalue the property," said Fox, owner of a hair salon.

Luke Zamperini, a chief inspector and spokesman for the Department of Building and Safety, suggested that Fuller's option other than paying for an underground circuit beneath the freeway is to invest in a generator or solar panels.

"I wish there was something I could do about it. He's finished the house and has a certificate of occupancy," Zamperini said.

DWP spokeswoman Michelle Vargas said her agency is willing to work with Fuller to resolve the situation. "A person who has a new home and wants to hook up can call the DWP, and we'll explore options to connect to power," she said.

In any event, there's not enough electricity connected to the street lamp to power an entire house. "If something trips, you'll have four homes without power," Vargas said.

Logan, meantime, hopes the DWP will be willing to work out a repayment plan for the trenching so electricity can finally flow into her long-planned retirement home.

"This has been devastating," she said of the situation. "We can't come up with all the money upfront."

bob.pool@latimes.com

 

[Msradell]

It seems like the DWP could use eminent domain to get the easement to run power to the residence. Barring that, providing power underground from the poll that provides power to the next door neighbor's home could be an option since the only reason they don't let the easement is because of the overhead powerline. Doing that should be much cheaper than running the power under the freeway!