Bolinas Community Public Utility District
Ordinance No. 30
Establishes Rules And Procedures For Governing The Use Of The Gridded Public
Right Of Way Network On The Mesa
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I. Background:
A. WHEREAS there exists in the part of Bolinas
known as The Mesa a gridded public right of way network; and
B. WHEREAS said right of way network has been dedicated
to public use; but no public agency has accepted the same; and
C. WHEREAS the Bolinas Community Public Utility
District is the owner in fee of such network; and
D. WHEREAS customary use of such rights of way
has historically developed in an atmosphere of laissez-faire with some roads
maintained by private persons, other roads abandoned through disuse, and others
encroached upon by private persons through buildings, landscaping and the
like; and
E. WHEREAS differences arise from time to time
as to which roads should be maintained, repaired and improved, and by whom,
and under what circumstances; and
F. WHEREAS: It has become apparent that a need
exists for a coherent set of rules and procedures governing the use of the
gridded public right of way network on the Mesa.
Now therefore the Bolinas Community Public Utility
District enacts as follows:
II. Definitions:
A. Right of way: That land lying within
the boundaries of the road network as shown on that certain map entitled
"Map of Bolinas Beach, Marin County California", filed for record May 4,
1927, in Volume 5 of Maps, at page 44, Marin County Records.
B. Encroachment: Any tangible thing, natural
or artificial, attached to the land lying within a right of way, and either
occurring there naturally or placed there by an adjacent property owner or
any other person.
C. Obstruction: Any obstacle, natural or
artificial, which has the effect of hindering, obstructing, or preventing
the normal and customary use of a right of way by the public, either of normal
customary travel or of the drainage of rainwater according to the Mesa Drainage
Map mentioned in paragraph III herein. (as amended by Ordinance 33).
D. Normal and Customary use of a right of way:
Such use and non use by the public as has historically developed over past
years up to the present.
E. District: The Bolinas Community Public
Utility District
F. Board: the Board of Directors of the
Bolinas Community Public Utility District
G. Dangerous Tree: Any tree
or other plant which is capable and likely to fall or shed limbs such as
to constitute a danger to persons or property, including but not limited
to that which would amount to a public or a private nuisance.
III. Maintenance and repair
A. Any person may maintain and repair the public
right of way adjacent to his or her own private property consistent with normal
and customary use and consistent with the specifications of that certain drainage
map prepared by David Keith Todd Consulting Engineers, Inc., of Berkeley,
California, and formally designated by the Board as "The Mesa Drainage Map.";
provided, that the public right of way has not been designated as a Neighborhood
Access Street on the November, 1995 Mesa Traffic Plan. Any section
of road designated as a Neighborhood Access Street may be repaired or maintained
by a person whose property is adjacent to such section of road if that person,
after consultation with the appropriate local neighborhood road maintenance
group, if any, has applied for and obtained permission from the BCPUD to
perform such work. Said map is located at District's office, 390 Elm
Road, Bolinas, California, 94924, and copies of relevant parts shall be available
at cost.
Where said map may be in conflict with otherwise normal
and customary use, said map shall control, provided however, that such control
shall apply only to drainage ditches and culverts, and provided further, that
the map shall not control where:
1. It be clearly shown that said map is in error;
or
2. It be clearly shown that the purposes and intent
of this ordinance will be equally or better served by a specifically proposed
deviation from said map.
B. Such maintenance and repair may be either of
traveled roadway or drainage ditch or both.
C. As to such maintenance set out in III A
herein no express or written permission is required.
D. Maintenance or repair of the public right of way or
any alteration there of other than adjacent to the private property of the
person doing the same is prohibited except as follows:
1. Any person may
apply in writing to the BCPUD for permission to do maintenance, repair, or
other improvement to any right of way. No fee shall be charged for such application.
a. If, in the reasonable determination of the
manager of the District, the application is for routine maintenance substantially
the same as that already approved by the Board, he or she shall forthwith
issue a written permit to the applicant setting out the scope of that which
is permitted,
b. If the application is new or is different in scope, place, or other
significant detail from previously permitted maintenance, the manager shall
place the application on the agenda of the next regular meeting of the Board;
provided, however, that if the proposed project meets the specifications of
the Todd Drainage Plan (as said plan may be amended from time to time) and
if, after due notice of the proposed project is given by the BCPUD to all
persons reasonably anticipated to be affected by the project and no such person
objects thereto, the manager may, upon making such findings as foresaid, issue
a written permit setting out the scope of that which is permitted together
with such terms and conditions as the manager may reasonably determine are
required, without referring the project to the Board for determination.
2. In such cases as in III D l.b. above, the manager shall notify all
persons residing and/or owning property adjacent to the place which is the
subject of the application and all other persons reasonably anticipated to
be affected by the same. The notices shall contain a copy or concise summary
of the application and shall be mailed or otherwise delivered sufficiently
in advance of the Board meeting or manager decision regarding the application
to afford reasonable notice of the same. If, upon considering the application
at a regular meeting, the Board determines the application to be:
a. Not in the public interest, then and in that event the Board shall
deny the application,
b. In the public interest, then and in that event the Board shall grant
the application upon such terms and conditions, if any, as the Board may determine
the public interest requires.
3. Such permission must be in writing and shall set out the scope of
that which is permitted together with any terms or conditions imposed by the
Board.
IV. Encroachments:
A. Any encroachment in any right of
way may be removed or abated by the District at any time, and the mere failure
to so remove or abate, even if the encroachment be known to the District,
shall not work a waiver by the District of any right the District may have.
V. Obstructions:
A. No person shall obstruct or place an obstruction
in any right of way.
B.
Any person aggrieved thereby may complain of any obstruction. Such complaint
must:
1.
be in writing,
2.
be signed by the complainant, and
3
contain a statement of the thing or condition complained of, together with
the name of the person responsible, if known.
C. Upon
receipt of a complaint hereunder the manager shall make notification in the
same manner as set out in Paragraph III.D.2. above.
D. If
upon hearing the Board determine the thing or condition complained of to constitute
an obstruction as that term is herein defined, then and in that event the
Board shall order the obstruction removed or abated.
E. Upon ordering an obstruction removed or abated the
Board shall make a determination that the costs of removal or abatement should
in the interests of justice and fairness be born in whole or in part by the
District or by such person as be found to have caused the obstruction, or
by both, and shall instruct the manager accordingly.
F. The Manager shall prepare a written notice of the
Board’s Order. Such notices shall contain:
1. A statement of that which is ordered,
and
2. A statement of the findings of
ultimate conclusionary fact in support of the order. In addition to
such ultimate facts the notice may contain a statement of the findings of
such preliminary facts as the Board may direct.
G. Any person, after receiving written notice as provided
in paragraph “F”, shall correct any violation(s) of any provision of this
ordinance within the time limit, and to the degree specified in the notice.
On a failure to do so, the District may pursue all legal remedies available
to it in enforcing the provisions of this ordinance.
VI. Nothing herein shall be construed to prohibit the District from
taking any action on any right of way on its own motion in order to safeguard
District property and infrastructure, or in order to promote the public interest,
health, or safety.
A. Dangerous trees in right of way:
1. There shall be a fund maintained
on an annual basis for the purpose of removal of dangerous trees.
2. Subject to Board of Directors’
review, the General Manager shall choose which such trees shall be removed
and allocate available funds for their removal according to the following
criteria, no single one of which shall be controlling:
a. the degree
of harm or damage that might be done by the tree weighed against its likelihood
of occurrence;
b. the cost
weighed against the benefit;
c. whether
or not there is an offer by a private party or parties to participate in the
project by donating services, materials, or money;
d. whether
or not there is a demand or request by a private party or parties that the
district remove a dangerous tree which threatens his or her person or property.
3. The General Manager shall
publicize from time to time in such manner as he or she deem effective, the
District’s purpose to remove such trees from its property and invite the public
to notify the District of such trees.
VII. Things Prohibited on District Property
A. The depositing, placing, or the
causing to be deposited or placed, of the following materials or substances
on land owned by the District, including the gridded public right of way
network on the Bolinas Mesa, is prohibited:
1. chemical pesticides;
2. refuse, such
as wood chips, concrete rubble, asphalt rubble, scrap lumber, yard waste,
or anything else unsuitable as road surface;
3. [reserved];
4. [reserved]; and
5. [reserved].
B. The District may recover the costs
of removal of such materials or substances from the person or persons responsible,
if known, by such means as may be appropriate under the circumstances.
C. Run-off from private property shall
be treated as a placing, or causing to be placed, of the aforementioned prohibited
materials or substances.
D. Nothing in this section (or otherwise
in this Ordinance) shall be construed to prohibit that which otherwise required
by law.
This ordinance shall be and is hereby declared to be in full force and effect
from
and after 30 days from the date of its passage and is hereby ordered publicly
posted at
least 7 days prior to end of said 30 day period.
The foregoing ordinance was passed and adopted on the
16th day
of August, l995, by the following vote:
AYES: Amoroso, McClellan, McNaughton, Pfeiffer, Siedman
NOES: None
ABSTAIN: None
ABSENT: None
Amended January 21, 1998; March 18, 1998; July 19, 2000; June 18, 2003 (ord
33); June 16, 2004 (ord 34); November 15, 2006 (ord 35)