The cost of removing the fencing from the property and installing chain link fencing at the property line is estimated to be $5,000. If the County Public Works Department performs the work of abatement and the property owner does not pay, the actual cost of the work and all administrative costs may be imposed as a lien on the property after notice and a hearing, and may be collected as an assessment against the property.

This is an appeal of a Notice and Order to Abate a public nuisance issued by the Public Works Director. The Notice and Order to Abate directed the owners of property located at 2444 Lunada Lane, Alamo, California in Contra Costa County (APN: 188-312-007) (the “Subject Property”), to remove fencing and other improvements that encroach within the County’s Iron Horse Corridor property, and encroach on Kinder Morgan’s pipeline easement on the County’s property. The Subject Property is owned by Thomas and Erin Newlin (“Property Owners”).   
  
Contra Costa County owns the Iron Horse Corridor, which is the former Southern Pacific Railroad Right-of-Way. The instruments that conveyed the Iron Horse Corridor to the County are attached hereto as Exhibit A, and incorporated herein by reference. The Corridor includes various utility easements, including a 10-foot-wide Kinder Morgan easement for a high-pressure petroleum pipeline. The County Public Works Department recently updated its maps to identify the actual locations of existing facilities that are located in the Corridor and determined that adjacent property owners have encroached onto the County’s property. The encroachment includes the fencing maintained by the Property Owners. Pictures showing the encroaching fencing are attached hereto as Exhibit B, and incorporated herein by reference. Additionally, the Property Owners’ encroachments extend within Kinder Morgan’s pipeline easement in violation of Section 51014.6 of the California Government Code and State Fire Marshal Regulations. Maps showing the County’s Iron Horse Corridor property, the area occupied by Kinder Morgan’s easement, and the approximate location of the encroachments are attached hereto as Exhibit C, and incorporated herein by reference.   
  
On March 22, 2012, Kinder Morgan determined that one of the fence posts adjacent to the Subject Property was located within 18 inches of the pipeline. Kinder Morgan performed an emergency excavation to ensure the pipeline was not damaged by the fence post. Kinder Morgan staff remain concerned that the presence of the encroachment within the easement poses a public safety risk. According to Kinder Morgan, third-party contact is the biggest threat to pipelines.   
  
Independent of the encroachment onto Kinder Morgan’s easement, the encroachments are located on County’s property, without a valid encroachment permit, in violation of County Ordinance Code Section 1002-2.008, which provides, in part, that, “No person, firm, corporation, or association, without first obtaining a written permit, shall: (1) Encroach or make any encroachment within, on, over, or under the limits of any right-of-way; (2) Make any alteration within, on, over, or under right-of-way; (3) Construct, put on, maintain, or leave on a right-of-way any obstruction or impediment; … (5) Place on, over or under a right-of-way any pipeline, conduit, or other fixture; … (7) Place any structure, wall, culvert, or similar encroachment, or make any excavation or embankment so as to endanger the normal usage of the right-of-way.” Ordinance Code section 1002-2.002(3)(B) defines “encroach” to include “going on, over, or under, or using any right-of-way so as to prevent, obstruct, or interfere with the normal use of that way,” including, “erecting or maintaining any post, sign, pole, fence, on, over, or under the right-of-way.”   
  
On March 15, 2012, County Public Works Department staff sent the Property Owners a letter to notify them that their fencing was encroaching on County property without a permit, in violation of Ordinance Code Division 1002. A copy of that letter is attached hereto as Exhibit D and incorporated herein by reference. The letter requested that they remove the encroachment within 90 days.   
  
Public Works staff met with the Property Owners and Kinder Morgan representatives on March 26, 2012, and all further communications between the County and the Property Owners were directed to the Property Owners’ attorney pursuant to their request. Copies of correspondence directed to, and received from, the Property Owners attorney prior to October 30, 2012 are attached hereto as Exhibit E, and incorporated herein by reference.   
  
The Property Owners assert that their use of the Iron Horse Corridor has ripened into both prescriptive and adverse rights. However, under California law, property owned by the public for a public use is not subject to adverse possession and no one can acquire a prescriptive title to such property regardless of how long it is occupied.   
  
Due to the Property Owners’ continued refusal to remove their encroachments or enter into a license agreement with the County, on October 30, 2012, the Public Works Director served, by certified mail, a Notice and Order to Abate on the Property Owners. The Notice and Order to Abate also was posted on the property on October 30, 2012. A copy of the Notice and Order to Abate is attached hereto as Exhibit F, and incorporated herein by reference.   
  
On November 15, 2012, the Property Owners notified the Clerk of the Board of Supervisors staff that they would appeal the order to abate. The written materials in support of the appeal are attached hereto as Exhibit G, and incorporated herein by reference. Notice of this hearing was sent to the Property Owners by first class mail on January 29, 2013.  
  
For the reasons explained above, Public Works Department staff recommends that the Board affirm the Notice and Order to Abate issued by the Public Works Director, and direct staff to take actions recommended in this board order.  

The County would continue to have exposed liability due to the encroachment on County property.

Not applicable

CLOSED the hearing;

DIRECTED the Public Works Director to send the Board’s decision by first class mail to the property owners and to each party appearing at this hearing, and to file the Board’s decision with the Clerk of the Board of Supervisors.