This is more on the sad saga of 8 Western Drive where City staff incompetence resulted in an illegal gift of public property to a departing homeowner who sold out for over a million dollars and left the City, the purchaser and the neighbors holding the bag. For other details, see City Attorney and Public Works Director Committed to Give Away Public property and Endanger Pedestrians, April 21, 2022.
This is the history of how a once engaged Code Enforcement unit enforced the law, thwarting an attempted takeover a decade ago and how a disengaged City staff facilitated the same takeover more recently. Thanks to Google Earth historical images, we can follow how it develops year after year.
Below is the situation in Nov 2007. The then owner of 8 Western had converted part of the street ROW into a parking area. There is a “No Parking Any Time” sign just to the left and behind the blue car. 8 Western is behind the car.
By May 2011 (below), the then owner of 8 Western has built several illegal accessory structures, which you can see to the right and in front of 8 Western (painted blue). The “No Parking Any Time” sign is behind the VW van here. The neighbors complained to the City about both the parking and the illegal construction, and Code Enforcement took action. See Richmond Building Permit #11-02410 and 11- 02411 (Remove illegal structures). The City also confirmed that no parking was allowed on that portion of Western Drive enforced the No Parking designation moving forward.
By June 2014 (below), the parking area was abandoned and a new “No Parking Any Time” sign installed by Public Works to the left. The illegal structures had been removed and as far as neighbors were concerned, the City had done its job and done it well. Mr. Zicherman and Ms. Aftel, who obtained the encroachment permit in 2021, purchased the property in July 2013 – after the City had helped the neighbors unwind the prior illegal parking and structures. Below is how the property looked when they purchased it:
By June 2015 (below), the parking area remained no longer in use and the No Parking designation was being enforced by the City.
By May 2017 (below), the abandoned parking space had grown over and remained out of use. Despite minor encroachments by several neighbors, all is well and peaceful on Western Drive.
In February of 2018 (below), the neighbors (all of whom experienced the above transition and prior enforcement by the City) notice a large stockade fence being built well out into the Western ROW. They ask their neighbor “what’s going on”?
“I have a permit” the neighbor says.
So they ask the City “what’s going on”? Even though they ask the question, they know what’s going on, and they know it is illegal – they’ve lived there for over 40 years. So, like last time, they call Code Enforcement. Only this time they get a different response.
This time, the City does nothing, and the neighbors are given the silent treatment by code enforcement. So they elevate it up city staff – to the senior planner, Public Works, and even the City Manager. Again, no response. So they call and email the Mayor, who also emails city staff and asks “What’s going on?”.
But not even the Mayor of Richmond can get an answer from staff as to “What’s going on”. Instead, Public Work Director Joe Leach meets with the neighbors and tells them it’s a done deal and they have no say in it.
“What about our lived experience and institutional knowledge of the last 40+ years?” they ask; “What about what the City told us and did last time this issue came up?” they ask.
Nope, says Joe Leach – that’s not important; the only thing that is important is what I think – and I say its fine. So the City Manager, with the blessing of the City Attorney’s Office executes a notarized document based on that and tells them the same thing: “It’s a done deal. We did and there is nothing you can do about it”.
Below, is June 2019 – a full two years before the “Encroachment Agreement” was recorded.
Do you see now why the neighbors are so upset? This was the polar opposite of how the City had (competently) handled it before. For the next TWO YEARS the neighbors complain to the City – but instead of enforcing the law, this time the City joins the scofflaws.
Some more insight into the history of 8 Western: the “Encroachment Agreement” was approved by the City Attorney’s office on 7/15/21 and by the City Manager (notarized) on 7/23/21. Below is an email sent by neighbor Clair Brown on June 28, 2021 (before any documents were executed) and a number of emails that followed.
On Mon, Jun 28, 2021, at 9:23 AM Clair Brown wrote:
Dear Director Velasco,
I am following up on my earlier email (June 2) about the public safety problem caused by the non-conforming stockade fence that encloses the public right-of-way in front of 8 Western Drive. Please provide my neighbors and me with an update.
To summarize the situation that was documented in the June 2 email: Approximately 1400 sq ft of city property is enclosed and the non-conforming fence goes down to Western Drive so there is no shoulder by the narrow 18' road for pedestrians to safely walk off the street. The fence, in fact, extends 37 feet into public land, from their property line down to Western Drive, The encroachment provides private parking for two cars for the use of the owner of 8 Western in a "No Parking" zone. Keller Beach is across the street, and parents and kids are forced to walk in the street in front of 8 Western Dr, below a blind hill where the street narrows.
I am especially concerned because Ms. Whales of Planning gave out erroneous information to RPD Captain Walle, both about a shoulder being in front of the stockade fence and about homeowners having an encroachment permit.
In addition, a City engineer (name on request) told us that he took a look at the encroaching fence and sliding gate at 8 Western Drive, but was told by City Planner Whales to "back off".
The house is for sale, and potential buyers who ask about the fence and city property are told that the owner has "an invoice for the encroachment". They also describe problems about the fence as a "minor dispute caused by the neighbors". The dispute is with the City of Richmond and not with neighbors.
The City needs to require the owners to put their fence back near the property line, and restore the shoulder and city right-of-way so that people can walk safely off the narrow street. This is a public safety problem that needs to be addressed before people are physically hurt, in addition to their being scared to walk in front of 8 Western Dr.
We know that public safety is a top priority and duty for Richmond Code Enforcement and Planning, and we look forward to learning that public safety is not being ignored.
Professor of Economics, University of California, Berkeley
Having received no response to her June 2, 2021, or June 28, 2021, email to city staff, she did receive a response from the Mayor – who was the only one who responded. Ms. Brown again emailed staff (still prior to the “Encroachment Agreement” being executed). Again, Ms. Brown received no reply from staff (note below she has been complaining about the illegal encroachment since 2020.
On Wed, Jul 7, 2021, at 5:04 PM Clair Brown wrote:
Dear Mayor Butt and Director Velasco,
Thank you Mayor Butt for providing us with the update about the fence that encroaches on the public right-of-way on 8 Western Drive and causes a public safety problem for pedestrians and cars.
We have provided documentation of the encroachment and how pedestrians are forced to walk in the narrow street on a blind hill in front of 8 Western Drive near Dornan Drive and across from popular Keller Beach. Beginning in September 2020, emails concerning the encroachment were sent to Eva Mann, Alma Causey, and Lina Velasco, who replied that the placement of the fence on public land was being investigated. We sent emails and documentation to officials in Code Enforcement, Planning, Richmond Police, and Community Development. However no further updates were provided until July 1, 2021, when Mayor Butt sent us the email with queries to Velasco about the investigation.
We are concerned that Richmond Senior Planner Whales, who took charge of the investigation, is not taking care of the public safety problem created by the encroachment (of approximately 1400 sq ft of city property) into the public right-of-way. The history of the problem online shows that #ISU2106-0117 had a file created on 6/6/2021 with description “fence built on public land”, and pending investigation assigned to JW1 (Planning) with due date 6/16/2021. The online record shows that the case was first assigned to SHANITA HARRIS of Code Enforcement; then reassigned to ALMA CAUSEY at 10:31 am on 6/7/2021; then reassigned to JACQUELINE OKEEFE at 2:36: 52 pm on 6/7/2021 and finally reassigned to JONELYN WHALES at 2:37:00 pm on 6/7/2021. Causey is in Code Enforcement and Whales is in Planning, but we do not know where Okeefe is employed, and we do not know if both Okeefe and Whales were assigned to work on the case at the same time. However, after 6/7, automatic messages were sent to Whales on 6/14 and 6/21 about the case, and a third automatic message was sent on 6/28 and 7/5 to Whales with a cc to Velasco. The due date of 6/16/2021 has been ignored and is long past with the public safety problem being ignored. We fear that this is an accident waiting to happen.
We can provide the previous emails containing documentation that were sent to the Richmond officials, if helpful.
Thank you for your help in ensuring that the City of Richmond takes action to enforce the Ordinances and protect the public safety.
Clair Brown and Richard Katz
20 Belvedere Ave [next door to 8 Western]
On July 17, 2021, Joe Leach responded (with full knowledge that the illegal “Encroachment Agreement” had been orchestrated by staff because he was directly involved). He does not mention this.
On Fri, Jul 16, 2021, at 12:37 PM Joe Leach wrote:
The Engineering Division is reviewing this issue. With several staff on leave today, I’ll confirm the disposition of this subject with them early next week and provide a response by Close of Business, Wednesday, 7/21.
Joe Leach, PE
Public Works Director
City of Richmond
emailed via digital telephonic device
Joe Leach does not follow up with Ms. Brown as he promised – instead joining the conspiracy to keep the neighbors in the dark about what staff had illegally done. Ms. Brown emails Joe Leach again on 7/30/21, just before the illegal agreement was recorded:
Dear Director Leach,
It is now the end of July, and the encroachment of public land, enclosing the public right-of-way along 8 Western Dr, is still causing public safety problems.
As the documentation shows, the Municipal Code is not being enforced by city employees and lawmakers.
As several neighbors have emailed you, there is simply no excuse for allowing the owners of 8 Western Drive to take over public property and creating a public hazard for private gain.
You stated on July 16 that you would provide a response about the disposition of this subject by Close of Business, Wednesday, 7/21.
We are still waiting for your response, and for the private front yard fence to be moved back to the property line at 8 Western.
Clair Brown [with her neighbors]
20 Belvedere Ave, Richmond, CA 94801
Finally, Joe Leach responds – telling the neighbors the City had granted an “Encroachment Agreement” based on his advice:
Thank you for your inquiry on the status of this application. My apologies for the delayed response.
The City has reviewed the applicant’s request for an encroachment. Based upon review of the vertical and horizontal geometry of the street (i.e. clear line of sight from the intersection of Western Drive/Dornan Drive), as well as the opportunity for a pedestrian to obtain safe refuge between the fence and edge of pavement, the City has granted the property owner the encroachment permit.
Joe Leach, PE
Public Works Director
City of Richmond
The same day, Mayor Butt emails Joe Leach requesting information on what the City had done:
Thank you or responding, but I have some concerns that this particular encroachment did not comply with RMC Chapter 12.30.
Was there a written application? If so, please provide a copy (12.30-040)
Is there a written permit? If so, please provide a copy. Were there findings? Please provide a copy (12.30.050).
Is there an insurance policy (12.30.050.1.B)? Please provide a copy.
Was there a surety bond (12.30.050.1.C)? Please provide a copy.
Is there an indemnification (12.30.050.1.O)? Please provide a copy.
Was the decision posted (12.30.60)? Please provide a copy.
Joe Leach does not respond to the Mayor’s July 30, 2021, email. Mayor Butt again emails him on August 15 and Aug 21 – again with no response from Joe Leach. Finally, on August 27, 2021 – 4 weeks after the request from the mayor and after multiple emails requesting a response, Leach emails the mayor. response.
My apologies for the delayed response to the questions from your 7/30 email. As I’ve completed 4 months of employment with the City of Richmond, I’m continuing to grow in my appreciation of this community and the impassioned engagement of stakeholders on a variety of issues.
Unfortunately, the Municipal Code section you cite is not applicable to the processing and issuance of Encroachment Agreements. The title of Chapter 12.30 is Video Service Provider, Utility and Special District Encroachments (added via Ord 21-08). The chapter that is normally used for Encroachment Permits as it relates to construction of facilities either owned/operated by the City or others is Chapter 12.29 – Street Opening And Pavement Restoration Regulations with the applicable application at the following link: http://www.ci.richmond.ca.us/DocumentCenter/View/9092/EP-Application-11-12-20?bidId=. Neither the Muni Code Ch 12.29 nor the Encroachment Permit application note a process for a permanent encroachment by a property owner (i.e. Encroachment Agreement).
On the Land Development Application provided by the Engineering Division (http://www.ci.richmond.ca.us/DocumentCenter/View/9553/Land-Development-Application-Form-8-14-2016?bidId=), there is a check box for Encroachment Agreement as show below:
As well as in the p. 11 of 111 of the Master Fee Schedule: Approved-Master-Fee-Schedule-Approved-June-2019--Effective-July-18-2019 (richmond.ca.us)
Regarding this specific application, it was originally submitted in 2017 to the Planning Department. As the request was for a fence, Planning staff approved the fence permit but was not aware of the encroachment at the time. It wasn’t until recently that Engineering staff became engaged in the process and coordinated with the property owner to execute the Encroachment Agreement, that is recorded against the property in perpetuity until the City revokes it. While the agreement indemnifies the City, insurance is required but a bond is not. I will seek City Attorney’s confirmation that it is acceptable to release both the application, agreement, and insurance information.
I understand that you have initiated a City Council agenda item to add language to Ch. 12.30 to include a notification process. I wonder if the entire Encroachment Agreement process needs to be documented as a separate section to eliminate future confusion.
Please let me know if you have additional questions on this matter.
Joe Leach, PE
Public Works Director
City of Richmond