HomeMy WebLinkAboutITEM II - LEGAL MEMO
Interoffice Memorandum
To: Peter B. Lewis, Mayor, City Councilmembers
Through: Daniel B. Heid, City Attorney
From:
Stephen King, Assistant City Attorney
Date:
January 24, 2006
Re:
City Authority to Require Adjoining Property Owners to Maintain Right-of-Way
Planting Strips
In response to the question recently posed to the Legal Department, regarding legal
options and status of obligations for maintenance of Right-of-Way Planting Strips, I
submit the following:
A number of the City's rights-of-way contain planting strips located between the sidewalk
and the curbing at the edge of the street pavement. Most adjoining property owners
maintain these planting strips as part of their normal lawn or landscaping routine, but
unfortunately, some property owners do not properly maintain their planting strips,
seriously impacting their neighborhoods.
The City has the same authority to require adjoining property owners to maintain planting
strips as it has to require them to maintain the lawns and landscaping on their property.
The City may also prohibit any landscaping within a planting strip that interferes with a
street, sidewalk, or utility facility, but the City does not have a generalized authority to
specify which non-interfering plant are allowed in a planting strip.
Ownership of the Riqht-of-Wav
In general, a City right-of-way is essentially an easement, in that the City does not own in
fee title the right-of-way, but instead has the right to use the property for street purposes.
Typically, the underlying fee ownership of the property within public rights-of-way belong
to the adjacent property owner.1 The boundaries of the adjoining properties generally
1 On rare occasions, a government may own a portion of right-of-way in fee (total ownership), giving the
street a property law status closer to a government-owned parking lot or driveway than to an easement.
The analysis set forth in this memo would not apply in those cases.
Memo to:
Date:
Re:
Peter B. Lewis, Mayor, City Councilmembers
January 24, 2006
City Authority to Require Adjoining Property Owners
to Maintain Right-of-Way Planting Strips
Page 2
goes to the centerline of the right-of-way, though that property interest is subject to the
City's right-of-way interest (via easement or street dedication).
Leqal Riqhts Within the Riqht-of-Way
Under Washington law, rights-of-way exist for the primary purpose of providing public
travel, but the Washington courts have recognized that rights-of-way may also be used
for utilities, such as electricity, water and sewer mains, gas pipelines, telephone service,
etc. - franchise rights. The City can prohibit any use within the right-of-way that
interferes with public travel or the provision of utilities, but generally, the adjoining owners
may use the right-of-way for any purpose that does not conflict with these uses. It is this
concept that has germinated into the adjoining owners' use the planting strips as an
adjunct to their yards.
Within the planting strip, the City may reasonably forbid shrubs that block driver sight
distances, trees with roots that could interfere with underground utilities, or ground
covers such as beauty bark that could wash into storm drains and block them, and
conceivable require the property owner to trim the vegetation so it does not pose an
interference with visibility. The City does not have the authority to regulate or prohibit
landscaping within the planting strip unless that landscaping interferes with the City's use
or interferes with public safety.
Requlation of Plantinq Strips as Private Property
While the City's right-of-way authority over planting strips is somewhat limited, there is
another basis for regulation. In that the planting strips are owned by the adjoining
property owners, they are private property. Therefore, the planting strips must conform
to all City codes applicable to private property.
One code that would be particularly appropriate in this context is ACC Chapter 8.20,
Vegetation (a copy of which is attached). A grass planting strip can be considered as a
lawn, subject to a six inch height limit under ACC 8.20.010(C). Landscape areas
required by the City, which could include planting strips set out in a plat or other
development plan, could constitute a public nuisance if allowed to become "overgrown
with weeds or un-maintained grass." ACC 8.20.010(E). On business property, it is a
violation of City code to allow "[a]ny undesired, uncultivated and unsightly plants growing
in profusion so as to crowd out desired plant growth or disfigure a lawn." ACC 8.20.020.
Please let the Legal Department know if you would like any additional research on this
issue.
Auburn City Code
Chapter 8.20
VEGETATION
Sections:
8.20.010
8.20.020
8.20.030
8.20.040
8.20.050
Vegetation as a nuisance.
Uncontrolled weeds and vegetation on business property.
Violation ~ Penalty.
Removal ~ City action.
Removal - Cost - Payment.
8.20.010
Vegetation as a nuisance.
Vegetation left uncut and/or in an unkempt stage may cause safety hazards, fire hazards, and/or pest
harborages, and may interfere with, annoy, injure or endanger the comfort, repose, health or safety of
others, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage,
street or highway; or in any way render other persons insecure in life, or in the use and enjoyment of
property, thus constituting a public nuisance.
A. Trees, plants, bushes, shrubs, vines, other vegetation or parts thereof which overhang any
sidewalk, street, alley or other public way which are growing in such a manner as to cause a sight
distance hazard or to obstruct or impair the full use of the sidewalk, street, alley or other public
way are declare to be a public nuisance.
B. Trees, plants, bushes, shrubs, grasses, vines, other vegetation or parts thereof that are growing
and/or grown and died and are now causing a fire hazard or menace to public health and safety,
or are degrading or causing a decline of the character of the neighborhood are also declared to be
a public nuisance.
C. Grasses (lawn) within the yards of occupied residential properties which are not maintained at a
height of six inches or less are also declared to be a public nuisance; provided, that property
within the R-R rural residential zone shall be exempt from the provisions of this paragraph.
D. Grasses, ground cover, and/or vines on vacant lots that are within or adjacent to developed areas
which are not used for agricultural purposes, and are not part of a wetland or other sensitive
environmental system, which are not maintained at a height of 12 inches or less are also declared
to be a public nuisance; provided, that property within the R-R rural residential zone shall be
exempt from the provisions of this paragraph.
E. Failure to maintain the trees, shrubs, ground cover, or grass of any landscaped area (that was
required by the city to be planted) in a healthy, living condition shall be a public nuisance.
Failure to replace any tree or shrub that has died is a public nuisance. It is also a public nuisance
iflandscaped areas are overgrown with weeds or un-maintained grass.
F. Any pruning of trees or shrubs (that were required by the city to be planted) shall be for the
purpose of maintaining the tree or shrub in a healthy growing condition and/or to enhance its
natural growing form. Excessive pruning of trees or shrubs that adversely affects the healthy
living condition of the plant or excessively damages the natural growing form of the plant shall
be a public nuisance; unless such pruning is done to alleviate documented public health and
safety concerns. (Ord. 5747 !j3, 2003; Ord. 4504 !j9, 1991; Ord. 2981 !j2, 1976.)
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Auburn City Code
8.20.020
Uncontrolled weeds and vegetation on business property.
It is unlawful for any person to permit or allow weeds or vegetation to become uncontrolled on any
business property within the city over which he or she has ownership, occupancy or control.
"Uncontrolled weeds or vegetation" shall be defined as follows:
A. Any undesired, uncultivated and unsightly plants growing in profusion so as to crowd out desired
plant growth or disfigure a lawn; or
B. Any vegetation growth, including but not limited to weeds, grasses, bushes, hedges and trees or
tree branches, which obstructs the vision of people in vehicles or on sidewalks or rights-of-way
so as to interfere with the safe, full and free use of any street, sidewalk or right-of-way within the
city; or
C. Any vegetation growth that creates a fire or other safety hazard. (Ord. 5747 !j 3, 2003; Ord. 5654
!jl, 2002; Ord. 4040!j7, 1985.)
8.20.030
Violation - Penalty.
The code enforcement official, or his designee, pursuant to the provisions of Chapter 1.25 ACC, is
authorized and empowered to notify the owner of any open or vacant private property within the city or
the agent of such owner to properly cut and remove all grass, weeds and brush growing in violation of
ACC 8.20.010 and 8.20.020 which is dangerous to public health, safety and welfare. A violation of any
of the provisions of this chapter by any person, firm or corporation shall be a civil infraction, punishable
in accordance with ACC 1.25.050, except where the violation is designated as a misdemeanor as
provided in ACC 1.25.050. (Ord. 5837 !j 7, 2004; Ord. 5747 ~ 3, 2003; Ord. 4504 ~ 10, 1991; Ord. 4040
!j2,1985.)
8.20.040
Removal - City action.
Upon the failure, neglect or refusal of any owner or agent so notified to properly cut and dispose of grass,
weeds and brush dangerous to the public health, safety or welfare within the time specified in the notice
provided in ACC 8.20.030, the code enforcement official is authorized and empowered to pay for the
disposing of such grass, weeds and brush and to order its disposal by the city. (Ord. 5747 !j3, 2003; Ord.
4504 !jll, 1991; Ord. 4040 !j3, 1985.)
8.20.050
Removal- Cost - Payment.
When the city has effected the removal of said grass, weeds or brush, any penalty assessed pursuant to
Chapter 1.25 ACC shall include the city's actual costs. (Ord. 5747 !j3, 2003; Ord. 4504 !j12, 1991; Ord.
4040 !j4, 1985.)
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