Tom Butt
  E-Mail Forum – 2023  
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  City of Richmond lacks Follow Through on Permits and Approvals
September 13, 2023

One of my enduring complaints about the City of Richmond is a deeply embedded culture that fails to follow through on permits, approvals and agreements. Once the approval has been made, the City is gone forever. Following are two examples from what were very controversial encroachment agreements.

8 Western Drive

On March 7, 2023, the City Council held a public hearing and adopted on a 4-2-1 vote Resolution 27-23 to approve an Encroachment Agreement application for 8 Western Drive. The Minutes of March 7, 2023, include the following discussion of a sidewalk:

The applicant's legal representative, Allan Moore, was given a total of eight minutes and summarized a letter emailed to the council in agreement with the staff report, proposed resolution, and findings in favor of the encroachment agreement. The applicant's design consultant, Michael Moloti, concurred with Mr. Moore and recommended that the installation of a sidewalk as proposed by CSW|ST2 be a gravel shoulder in lieu of a concrete sidewalk.

To approve the staff recommendation and add the option to install a sidewalk as proposed by CSW|ST2.

On April 4, the City Council voted 6-1 to approve the actual Encroachment Agreement. The staff report stated:

    • The encroachment has a sufficient setback from street curbs or pavement edges  and does not negatively impact the area’s reasonable use. A standard setback should  be no fewer than three (3) feet, subject to City Engineer’s determination that the  area’s conditions or environment allows otherwise.
      • The encroachment varies from slightly less than four (4) to six (6) feet from the edge of pavement. RMC 12.30.190(a)(2)(J)(i) requires that a four (4)-foot area of space be allocated for a sidewalk. The Applicant should be conditioned to provide a four (4)-foot sidewalk with a protective curb to the satisfaction of the City Engineer. This may require a partial reconstruction of the fence.

The Encroachment Agreement includes the covenant:

    • Maintenance. Owners shall maintain, repair, and/or replace the Encroachment and the City Property in accordance with the Approvals, and such that the Encroachment and the Encroachment Area remain at all times in a neat, clean, and first-class condition, as well as in good order and repair, including being weed-, trash-, and debris-free. In the event that Owners do not maintain the Encroachment, the Encroachment Area, and City Property as required herein, the City may terminate this Agreement as more particularly provided in Section 6.0.

So, what happened after the City approved the encroachment? Well, nothing. There is no sidewalk, and the area has been taken over by weeds. The rocks are still in place that prohibit pedestrians from moving off the pavement. And even more mysterious, the home is unoccupied. This was a verry controversial issue, and City Staff went aggressively overboard in supporting the applicant. But once it was approved, City staff lost interest, and the conditions of approval remain unenforced.

A fence next to a road    Description automatically generated
Figure 2 - 8 Western Drive - no sidewalk, weeds and rocks block pedestrian use

Figure 3 - 8 Western Drive - no sidewalk, weeds and rocks block pedestrian use
130 East Scenic Avenue

On February 21, 2023, the City Council adopted on a 6-1 vote a resolution to approve an encroachment agreement for 130 East Scenic Avenue.

The application argued that one purpose was to create a “safer space for pedestrians to walk on” and create a “refuge area for pedestrians to step off the road.”

Another purpose of this fence will be to create a safer space for pedestrians to walk on. There is no safe area for people to walk now unless they are on the road. This can be problematic when a car is coming. The fence would allow for a refuge area for pedestrians to step off the road without falling down the steep hill and allow cars to pass in a safe manner.

City staff, who aggressively supported the encroachment application,  wrote:

The encroachment has a sufficient setback from street curb(s) or pavement edge(s) and does not negatively impact the area's reasonable use as determined by the City Engineer. While most of the proposed fence is set back more than three (3) feet, there are portions of the encroachment that are fewer than three (3) feet. In its existing state, the affected portion of road has a very minimal shoulder (i.e. two to three (2-3) feet). The proposed fence structure does not seek to worsen the existing condition.

The encroachment may conflict with RMC 12.30.180(a)(2)(J)(i). This section requires that a four (4)-foot area of space be allocated for a sidewalk. However, the encroachment may be considered permissible due to the conditions of the site and the potential complications of building a sidewalk on such an extreme slope. Creating an acceptable refuge area for pedestrians will be addressed in the encroachment agreement conditions should Council approve this item.

The application shows grateful pedestrians stepping out of the way of cars.

Figure 4 - Pedestrian stepping off the pavement to avoid vehicle traffic

The reality, however, is different. The proposed pedestrian refuge is blocked by the fence foundations that create a tripping hazard as well as the remains of planting that was removed.

The approved application also showed that the 6-foot-high section of fence would have every other slat removed to provide “50% open above 4’”. But it was not built that way.

Figure 5 - Elevations show "50% open above 4'"

Figure 6 - Renderings show 50% open above 4'

Figure 7 - Actual construction is not 50% pen above 4 feet

When I brought these discrepancies to the attention of Public Works, Robert Armijo wrote:

After receiving your email, Public Works promptly dispatched an inspector to the location. We can confirm that the fence as constructed does not conform to the approved plans, specifically the requirement that the fence should be 50% open above 4 feet.

We have notified the homeowner of this non-compliance and have advised them that they are in violation of what has been approved by the City Council. The homeowner has expressed interest in bringing the fence into compliance and has also indicated that they would like to present a revised concept to the Council to achieve the required 50% transparency above 4 feet.

We are currently awaiting the homeowner's action on this matter and will keep you updated on any developments.

So, instead of enforcing the conditions of approval, the City declined to take action based on the speculation that the applicant might, at some future date, petition the City Council to change the conditions of approval and that the City Council might adopt the requested changes.

Meanwhile, pedestrians are faced with conditions even more dangerous than those that existed prior to construction of the fence.

I also resent City staff taking such an aggressive and non-objective advocacy position in favor of this application. They essentially lied to the City Council in agreeing that there are “complications of building a sidewalk on such an extreme slope.’ The slope is neither extreme, nor would constructing a sidewalk be particularly complicated. These are licensed professional engineers and should know better.