Back in the Wild West, there was the Homestead Act, signed by President Abraham Lincoln on May 20, 1862, which gave people up to 160 acres of public land, provided they live on it, improve it, and pay a small registration fee. The Government granted more than 270 million acres of land while the law was in effect.

Figure 1 - Homesteading the American West

In Richmond, we have something similar, except there is no “act” to authorize it. A compliant and free-lancing Richmond City staff has simply made up their own process and will be more than happy to help you acquire a nice chunk of public land at little or no cost. Maybe you think your lot is a little too small, and you would like to expand it into the public street, fence it off, create a couple of private parking spaces on public property and create a private entry for your home. No problem -- Richmond City staff is here to help you.

How does this work? Here is an exquisitely detailed “how to do it” example.

The property at 8 Western Drive is located across the street from Keller’s Beach, a popular part of Miller-Knox Regional Shoreline. The owners of 8 Western Drive had only a single parking off-street space, located inconveniently behind the property and accessed by Belvedere Avenue, an 8-foot wide dead end street that is essentially an alley. It was hard to find, offered no parking for guests and difficult to navigate by delivery vehicles. Besides that, they had more than one car, and because of the park across the street and the narrow 18-foot width of Western Drive, no parking was allowed in the front of the house.

Figure 2 - Single parking space on a deck behind 8 Western Drive, accessed by Belvedere Avenue.

Figure 3 - Western Drive frontage of 8 Western Drive in 2017

The owners of 8 Western Drive wanted to sell the property, but to maximize profit, they wanted to solve their parking problem and make the property more attractive No problem. Here is what they did with no initial authorization from the City. Sometime between 2017 and 2020, they built an attractive redwood fence with a rolling gate around 1,580 square feet of the 50-foot right-of-way of Western Drive, taking up over 77% of the right-of-way (38.67 feet) at the eastern property line and over 55% of the right-of-way (27.57) feet at the western property line. At its narrowest, that left only a little over 11 feet of public right-of way!

Once the project was complete and the home all ready to put on the market with its new landscaped front yard entrance and private parking for two cars, all on the Western Drive street right-of-way, the owners completed an Encroachment Application that also included a fence permit for a 6-foot fence. The height of a front yard fence in Richmond is limited to 4-feet unless approved for up to 6-feet by the Planning Department pursuant to a fence permit application.

It has long been the conventional wisdom in Richmond that building anything without a permit is the best way to go. Chances are that no one will notice, and if they do, you can always get the City to approve it after the fact.

The initial application for a fence permit was dated December 21, 2017, (PLN17-670) but was incomplete in that it did not indicate the application type (sign permit, fence permit, etc.), but the only project description is “Fence (6 ft).” It is stamped “APPROVED” by someone presumably in the Planning Department on December 17, 2021.The invoice indicates a fee of $53.00 as paid on December 21, 2017, for “DRR – Over The Counter Fence Review.” There was no mention of an encroachment into the public street right-of-way in either the application or the approval.

Figure 4 - Fence Application PLN17-670

Sometime after the 2017 fence permit application but before October 1, 2020, 6-foot wood fences were constructed enclosing the entire property, including both the Western Drive and Belvedere Avenue frontages, plus an additional 1,580 square feet of Western Drive right-of-way. The fence on the Belvedere Avenue frontage also appears to encroach into the right-of-way.

Figure 5 - Photo dated October 1, 2020, of the completed project some 9 months before an encroachment application was submitted

Unfortunately, way back in 2017, Planning staff did not follow the Municipal Code requirements for permitting a 6-foot front yard fence, notwithstanding the encroachment issue.

The fence application and permit failed to indicate the location of the proposed 6-foot-high fence, particularly with respect to property lines. RMC 15.04.601.060.C.1 states:

Fence Location on a Lot. Fences may be erected, placed or maintained along or adjacent to a lot line or within a yard. A fence located on a lot line shall be considered as being within the yard adjacent to that lot line. The fence owner shall be responsible for properly locating all lot lines before construction of any fence.

RMC 15.04.601.060.C.2 states:

Fence Encroachment onto Public Property. No portion of any fence, including gate doors, shall encroach upon or project into any public right-of-way or other public property without the fence owner first obtaining from the City an encroachment permit.

RMC 15.04.601.060 states:

Exceptions to Residential Fence Height Regulations. The Zoning Administrator may grant an exception to the front yard fence height requirements imposed by this Section. Such exception shall be made only after public noticing of the proposed fence adjustment to side yard abutting property owners, the completion of a site visit, and administrative design review pursuant to Article 15.04.805 if he/she makes all of the following findings:

• The proposed fence will not create or exacerbate a public safety hazard;
• The proposed fence is of design, materials, scale and color that are compatible and harmonious with the subject site, site improvements and other properties within the immediate vicinity; and
• Front yard fencing that prohibits access to the home shall be equipped with a doorbell device.

• Not requiring information about the fence location to determine if it was on the lot line or inside the yard.
• Approving a fence that encroached significantly into the right-of-way.
• Not noticing of the proposed fence adjustment to side yard abutting property owners.

At some point after the project was completed, the encroachment into Western Drive became known, and City staff was more than happy to help the owner clean up the egregious expropriation of over ¾ of a city street.

Years after fencing in the street right-of-way, the property owners completed and submitted an “Encroachment Application Form” on May 11, 2021 (EN21-00325). It was noted “Approved” by Senior Civil Engineer Tawfic N. Halaby on July 13, 2021.

Figure 6 - Encroachment Application

Figure 7 - Survey of Improvements Encroaching on Western Drive Adjacent to APN 558-012-021, Kister, Savio & Rei, Inc, June 3, 2021

An invoice dated June 23, 2021, indicates the property owner was billed $1,032.24 for processing the application, about $0.65 per square foot, a fraction of what it would cost to actually buy land at that location.

Subsequently, some City staff member drafted an “Encroachment Agreement”, and City staffer Nathalie Zaldivar submitted it to the City Attorney’s Office for review on June 28, 2021. “[Assistant City Attorney] James [Atencio], Please review the attached RLO, encroachment agreement and additional documents. Please provide a response by July 7.”

On July 2, 2021, James Atencio emailed Tawfic Halaby, “Tawfic, this looks good. Since the agreement indicates it will be recorded, you need to insert the space or the recording on top of the first page and notary blocks for signatures.” A handwritten notation indicates, “Done – NZ”.

Meanwhile, the abutting property owners were complaining about the fence. On June 23, 2021, there were emails from the abutting property owner to Albert Walle, and on June 24, 2021, from the abutting property owner to Albert Walle, Amanda Le Gaux, Matthew Stonebraker, Jonelyn Whales, Lina Velasco, Eva Mann, Alma Causey and Joe Leach. The abutting property owner emailed Lina Velasco on June 28, 2021, and  reached out to me on July 7, 2021, with an email copied to all the previously listed individuals.

I made my first inquiry on July 16, 2021, and continued to pose questions via multiple emails on July 16, 2021, most of which went unanswered.

Despite the numerous unanswered questions and protests, the city manager summarily executed the agreement on July 23, 2021, more than a month after the abutting property owners began complaining, and years after the encroachment had been constructed, and she had it notarized. The city attorney approved it (to form).

There is no provision in the Municipal Code for a “Encroachment Agreement” and no authority for the city manager to execute one. The whole process was simply made up and completed by City staff with no authority whatsoever.

When I started making inquiries again in September, instead of admitting errors, City staff circled the wagons and started doubling down on their faulty and illegal decisions. Regarding the illegal 6-foot fence on Western Drive, staff responded, “Regarding the fence permit, the planner states that the main entrance to the house is on Belvedere, therefore, that is their front yard.  The approved fence permit was a 4-foot-high fence on Belvedere and side and rear yard fences up to 6 feet in height, as permitted by the Zoning Code.”

First of all, the fence on the Belvedere side is 6-feet, not 4-feet. Second, the claim that Belvedere is the front of the property has no basis whatsoever.

Western Drive:

• The official address of the parcel is 8 Western Drive.
• The house number (8) is mounted on the Western Drive fence.
• Western Drive pavement is about 16-feet wide with two-way traffic.
• The mailbox and doorbell are located on Western Drive.
• The fence and gate encroaching on Western Drive enclose parking paces for two vehicles and stairs to a porch and entry door to the house.
• Deliveries are made to this entrance.

Belvedere Avenue

• Belvedere is about 9 feet wide with a dead end.
• There is no mailbox, no house number and no doorbell
• Access to the house is via a narrow stairway that leads to the back of the house.
• Belvedere is more like an ally than a street.

Figure 9 - Google Earth image from Western Drive from June 2019

Figure 10 - Two private gated parking spaces on fenced-in portion of Western Drive

Figure 11 - Google Earth image Belvedere, June 2019

It appears that the process and content for an encroachment agreement is something simply invented without authorization of ordinance or Charter by City staff.

There is no authorization in ordinances or the Charter for the city manager to execute a contract other than a procurement contract for $10,000 or less (Charter Article III – Section 7):

(Added at the election November 2, 2004) Effective with the November 2008 election, no ordinance shall be passed, no officer appointed or removed, no contract shall be awarded and no obligation incurred by the City in excess of one thousand dollars without the affirmative vote of at least four members of the Council provided that, the Council may by ordinance authorize the City Manager to enter into contracts and incur obligations on behalf of the City not in excess of ten thousand dollars.

The City Charter expressly vests any powers not otherwise vested in the City Council (Article III, Sec. 1).  The Charter specifies that only the Mayor shall sign all contracts not otherwise vested or delegated (Article IIIA, Sec 2). 

Article III. Sec 7 requires all contracts be ratified by 4 council members, but provides for authority for the Council to enter into contracts not to exceed $10,000.

There is no authorization by ordinance for the city manager to enter into any contracts other than for procurement (and only if less than $10,000): the question is not whether the value of an encroachment agreement exceeds $10k, but rather whether the authority exists for the city manager to enter into a non-procurement contract all when it does not exist.  Procurement contracts are authorized by RMC 2.52.334.  ALL other contracts much be ratified by the council and signed by the mayor (pursuant to the Charter).

The city manager improperly and illegally entered into an encroachment agreement to allow a private party the exclusive use of 1,580 square feet of public street right-of-way.

The California Constitution, Article XVI, Section 6, prohibits the giving or lending public funds to any person or entity, public or private, except for public purposes, which has been interpreted to include any “thing of value.”

The city manager’s execution of an encroachment agreement to allow a private party the exclusive use of 1,580 square feet of public street right-of-way without action by the City Council was an unlawful gift of public property.

The CA Fire Code (2019 – which Richmond adopted) 503.2.1 requires all fire apparatus access roads (which includes Western Drive) shall have an unobstructed width of not less than 20 feet, exclusive of shoulders.  Western Drive is about 18 feet wide at the narrowest point adjacent to 8 Western Drive, and more than half of the paved surface is on East Bay Regional Park Land.

The city manager’s execution of an encroachment agreement that constricts the roadway to less than 20 feet is a violation of the California Fire Code.

The encroachment agreement includes the provision:

“OWNER hereby agrees to maintain the Encroachments as required by the CITY Engineer, and to remove any and all of the Encroachments without any expense to, or replacement of improvements by the CITY or public utility company upon ninety (90) days notice by CITY or immediately by CITY, whenever, in CITY’S opinion, the condition of the Encroachments are determined to constitute a hazard to safety, health or public welfare or the affected area is needed for municipal or public utility purposes. Following the removal of the Encroachments, the OWNER shall restore the public right-of-way to a condition approximately the same as the condition of the right of way prior to installation of the encroachments.

City staff should do the right thing and revoke the encroachment agreement for 8 Western Drive.