I attended my last City Council meeting on January 9, 2023, and I haven’t been back since. But last night I had to weigh in on a proposed encroachment proposed by a property owner a few hundred feet away from my home on East Scenic Avenue. Not surprisingly, the encroachment and pending agreement was approved on a 6-1 vote, with Councilmember Bana dissenting.

The item began with a presentation by new city engineer, Robert Armijo, who had clearly, but inappropriately, become an advocate for the applicant. Mr. Armijo erroneously stated that all the application requirements had been met. He stated that staff recommended approval. He showed a PowerPoint that had not been included in the Agenda packet and went on to make at least two erroneous statements:

• Armijo stated that the proposed 6-foot-high fence did not require a separate permit because it is not on private property. Mr. Armijo apparently did not read RMC 15.04.601.060, which states, “All fences require Zoning Conformance approval by the Zoning Administrator,” and, “Front yard fences above 4 feet in height require the approval of the Zoning Administrator.”
• Armijo stated that the existing fences on the property of the applicant are not on public property. In fact, the Plat of Survey submitted in the application packet shows that not only are all the existing fences on the East Scenic Avenue frontage within the City right-of-way, but there are also retaining walls, a porch and a private sidewalk within the City right-of-way.

This is part of a disturbing trend where City staff now believe they are working for developers and private property owners rather than representing the public interest, or at least remaining objective.

When it came time for public speakers, the incompetent and corrupt city attorney also erred by stating that the applicant could speak for 8 minutes instead of the normal 3 minutes. The City Council Rules of Procedure only allow 8 minutes to an appellant in a public hearing involving an appeal, which this was not.

The majority of public speakers opposed the encroachment, and only four people spoke in favor, two of those being related to the applicant and another admitting that he did not live in the immediate neighborhood.

Although anyone has a right to apply for an encroachment into the public right-of-way, the City has no obligation to grant it. The real question here is whether it is good public policy for an abutting property owner to convert public property to private use, with no benefit or remuneration to the public, by fencing it off and essentially incorporating it into a private yard?

RMC Chapter 12.30 indicates that encroachments are warranted only “due to special circumstances” (12.30.190(A)(1) (G)) and “unique circumstances (12.130.180 (a)). There are no special or unique circumstances. East Scenic Avenue is a narrow one-way street cut into a steep hillside over a hundred years ago with 9-10 feet of pavement in a 30-foot right-of-way. The conditions at 130 East Scenic Avenue are typical and neither special nor unique.

There should be a clear public benefit for transferring the use of public right-of-way to a private landowner. In this case, there is none.

Furthermore, neither the application nor the notice for this encroachment were complete or correct, and it should not have even been scheduled for a hearing. Staff, however, ignored that and pressed ahead.

History

This fence was originally built in 2020 without any permits, neither an encroachment permit (RMC 12.130.80) nor a fence permit (RMC 16.04.601.060). See Figure 1.

At the direction of the City, a portion of the fence was removed in 2020, but approximately 40 feet of 6-foot fence encroaching into the public right-of-way remains to this day, along with other private improvements, including a porch, a flagstone path, a concrete retaining wall and a driveway.

RMC 2.30.030(d) states, ”Any encroachment that requires but does not have a permit shall be deemed a violation of this chapter and a public nuisance, which the City may abate pursuant to any applicable provision of the law, but not limited to, this Code’s Chapter 9.22.”

It is unclear why the City continues to allow these illegal encroachments to remain for over two and a half years without requiring it to be removed.

Last night, the City Council acted to legalize it after the fact.

Figure 1 - Photo of fence at 130 East Scenic from April 25, 2020. This fence, under construction at the time, was red-tagged and partially removed.
Application Issues and Deficiencies

The updated Application for Encroachment dated 2/1/23 describes the purpose:

The applicant described the proposed fence as a guardrail, that would protect, “people who are walking on my property from a car coming off the road above crashing down into my property,” yet there is nothing in the application to show that the proposed wood fence has the structural properties required to keep an out-of-control vehicle from crashing through it. Furthermore, there is no record of a vehicle ever going off the road at East Scenic Avenue and crashing down the hill. The possibility of that is purely speculative.

The applicant describes the fence as creating a “safe space for pedestrians to walk on” and a “refuge area,” yet the area between the existing asphalt paved roadway and the proposed fence is shown as a vegetated dirt slope with tripping hazards – not exactly a functional “refuge area.” It does not conform to either ADA or City of Richmond standards for a sidewalk.

The privacy motivation is puzzling because the proposal shows the fence above 4-feet as 50% open, negating any actual privacy. Every downslope house along East Scenic Avenue has windows facing the street, but none have erected fences to “create some privacy.” Indeed, “eyes on the street” is fundamental principal of CPTED (Crime Prevention Through Environmental design), and a fence would interfere with the applicant’s ability to see what is going on in the street and make everyone less safe.

Finally, the applicant wants to keep the deer out of “our yard.” Part of the proposed fence is only 4-feet high, an easy jump for even a very young deer. The area proposed to be fenced is not the applicant’s yard; it is a public right-of-way. The applicant can erect a deer fence on his property line without an encroachment permit.

Incomplete and Improper Application

• The application is not on, “a City Engineer-prescribed form” (12.30.050(a)).

• The application letter dated 2/2/23 is not addressed to the city engineer. It is addressed to “Whom it may concern” (12.30.180(a)).
• The application does not describe a “unique circumstance necessitating an encroachment agreement” (12.130.180 (a)). The conditions at this property are common to all of East Scenic Avenue, a narrow one-way street with steep banks on each side.

• The name, address and telephone number of the contractor is not listed (12.30.180 (a)(2)).
• The plans do not show, “vertical locations with respect to property and grade lines” (12.30.180(a)(7)).

Deficient Notice
The notice posted at the property is deficient because:

• It does not include the method by which interested parties may acquire a copy of the application. It only states, “call above” (12.30.180.(b) (2) (F)).

Findings and Conditions

12.3.190 requires conditions and findings that have not been met.

• The application did not include “all necessary, supporting information” (12-30-190(a)(1)(A)).
• The encroachment is not, “warranted due to special circumstances…” (12.30.190(A)(1) (G)). This property is no different than any other downslope property on East Scenic Avenue.”
• The certificate of insurance does not provide $2,000,000 aggregate coverage (12.30.190 (a)(2)(I)(ii and iii)).
• The proposed encroachment does not include “space for a four-foot sidewalk on one side” (12.30.190 (a)(2)(J)(ii)). The table below shows the width available for a sidewalk:

There is no sidewalk proposed in the application, and the area indicated would violate ADA standards. It is not paved and has a cross slope that exceeds 2 percent. The standard Richmond sidewalk is 5 feet wide (City of Richmond Engineering Services Department standard Plan for Sidewalk, Curb and Gutter, Drawing ST01A dated September 2010). The applicant argued that due to the steepness of the downslope, creating a sidewalk would be too expensive, but never provided any cost estimate. You would think that the public would get some quid pro quo for giving away about 1,400 square feet of public right-of way. A 3-4 foot retaining wall would have done the trick.

Figure 4 - Site Plan does not show property line

Figure 6 - Site plan does not show dimensions between exiting property lines and proposed fence

Figure 7 - Sections do not show property lines
The notice posted at the property is deficient because:

• It does not include start and completion dates (12.30.180.(b) (2) (C)).
• It does not include the location of the public hearing (12.30.180.(b) (2) (E))
• It does not include the method by which interested parties may acquire a copy of the application. It only states, “call above” (12.30.180.(b) (2) (F)).

12.30.190 Findings and Conditions, (a)(2)(I) states, “The encroachment does not obstruct (i) More than nine feet of a one-way street travel lane, which includes space for a four-foot (48-inch) sidewalk on one side;” As can be seen from the sections from the application shown below, the “sidewalk” ranges from 30 inches to 40 7/8 inches, none of which satisfy this finding and condition.

Figure 8 - Section 3 from Encroachment Application does not show the 48-inch sidewalk

Figure 9 - Section 5 from Encroachment Application does not show the 48-inch sidewalk

Figure 10 - Section 6 from Encroachment Application does not show the 48-inch sidewalk

Figure 11 - Section 7 from Encroachment Application does not show the 48-inch sidewalk

Figure 12 - Posted notice at east end of proposed fence


Figure 13 - Posted notice at west end of proposed fence