CC SR 20201104 04 - Crest Road Utility Pole Re-Location (Supplement Report from City Attorney Wynder)1
CITY COUNCIL MEETING DATE: 11/04/2020
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
City Attorney’s supplement to Staff Report on relocating certain utility poles and
power lines at 3867 Crest Road.
RECOMMENDED COUNCIL ACTION:
(1) Include this supplement in the Staff Report of the same date.
FISCAL IMPACT: None
ORIGINATED BY: William Wynder, City Attorney
REVIEWED BY: Elena Gerli, Assistant City Attorney
REQUESTED BY: Ara Mihranian, AICP, City Manager
BACKGROUND:
We have been directed by the City Manager to provide a public response to certain letters
sent to the City and City Council from Attorney Brad Malamud on behalf of Rancho
Palos Verdes Estates Community Association (HOA).
Attorney Malamud advises that he sent a letter dated October 30, 2020, a
Supplemental Letter No. 1, dated November 1, 2020, and a Supplemental Letter No. 2,
dated November 3, 2020. Unfortunately, after a diligent search the City can find no
evidence that an October 30, 2020 letter was ever received by the City or by the Office
of the City Attorney.
A. RESPONSE TO SUPPLEMENTAL LETTER NO. 1
Attorney Malamud’s arguments revolve around a central premise, with which we
respectfully disagree: (1) that the Funiciellos are proposing to relocate public utility
power poles and transmission lines onto private property, and (2) there is no legal basis
for allowing this encroachment.
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He further argues that the proposed location of the poles is within a City easement, but
on private property, and that the Funiciellos cannot use the City’s easement to locate utility
poles because the Funiciellos are not a utility. He further argues that the issuance of the
permit is discretionary, and the “City” (without identifying whom at the City he is referring
to) can therefore deny it.
Attorney Malamud also makes a distinction between the easement and the right -of-
way, but it is not clear what the argument here is (it should be noted that “right -of-way”
refers to the use of the property, and can be either an easement or in fee interest).
At the risk of repeating what has been carefully reviewed in prior staff reports, Tract Map
33206 was filed with the County on October 22, 1979, to subdivide property owned by
Shapell Industries, Inc. (“Developer”) for the development of the residential project
commonly known as “Rancho Palos Verdes Estates” (“Development”). On that Map (at
Book 930, Pages 54 and 56) Developer specifically abandoned all prior private streets,
acknowledged that Crest Road was a public road and also dedicated additional
easements within the Development to the City of Rancho Palos Verdes (“City”).
As noted in the Map Dedication, Crest Road was a public street existing prior to the Map
being filed in 1979. The Developer’s Statement on the Map specifically indicated that
the Developer acknowledged “[a]s a dedication to public use . . . all of Crest Road
within or adjacent to this subdivision remains a public street, we hereby abandon
all rights of direct vehicular ingress and egress from abutting lots to the said street.” This
statement confirms that Crest Road was a public street existing in 1979.
Public rights-of-way are exclusive meaning the City has exclusive control of the road and
the underlying fee owner may not control the use of the land. The rule is that a city has
the right to use a dedicated street and this right is paramount to the ri ghts of abutting
owners regardless of whether they own the fee to the center of the street or not. (Hayes
v. Handley (1920) 182 Cal. 273, 281-84; Berkley v. Gordon (1968) 264 Cal.App.2d 461,
464-65 [Defendants argue in support of the judgment, however, that plaintiff has not
established its claim to the street, since no documents of title were introduced in evidence
and since it is presumed that defendants as abutting owners own to the center of the
street. . . . The state of the title, however, is immaterial since it is conceded that University
Avenue is a public street.], Fallon v. City & County of San Francisco (1941) 44 Cal.App.2d
404.)
Accordingly, unless vacated, the underlying owner (be it the HOA or otherwise) simply
does not have any rights other than as an abutter meaning the owner has a right to access
the Crest Road from one access point designated on the Tract Map. However, the Map
Dedication terminated all abutter’s rights.
A right-of-way is exclusive to the governmental agency and may not be used for other
purposes by the servient property owner (except for limited abutter’s rights). If a street in
easement is vacated, the adjacent property owners on each side thereafter own and can
use to the middle of the vacated street area.
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Therefore, the City owns an exclusive right-of-way some of which may be across the
HOA’s common areas adjacent to Crest Road. The HOA has no right to use or control
that portion of Crest Road unless or until the City abandons its right -of-way. The right-of-
way measures 100’ in width, 50’ on either side of the center line, and includes the
improved roadway and unimproved land.1
B. RESPONSE TO SUPPLEMENTAL LETTER NO. 2
Attorney Malamud makes reference to the City “General Plan” as well as Chapter 12.12
of Title 12 of the Rancho Palos Verdes Municipal Code (RPVMC). Chapter 12.12 deals
with the process of forming underground utility assessment districts. Respectfully,
neither argument is relevant to the issuance of an encroachment permit , which is
governed by Chapter 12.04 of Title 12 of your municipal code (the staff report has
provided you with a detailed analysis with which our office agrees).
1. The General Plan. The General Plan, sets the vision of the City in the form
of goals and aspirational policies. The Municipal Code is the implementing document for
those goals. In regards to undergrounding of utilities, as noted above, Chapter 12.12
provides regulations for forming an undergrounding assessment district while Chapter
17.54 of the Municipal Code requires all new development projects to underground
utilities. Additions for residential projects are exempt from this requirement.
2. Chapter 12.12. This chapter is unrelated to the issuance of an
encroachment permit, which, as noted in the staff report, is governed by the entirely
separate Chapter 12.04 in your Municipal Code. Chapter 12.12 of the RPVMC deals with
the formation of an underground utility assessment district (a so-called Rule 20B
district) through a process established by the municipal code with overarching
requirements imposed by Proposition 218 (requiring majority property owner approval).2
Forming an underground utility assessment district can be initiated by following the Rule
20 guidelines adopted by Southern California Edison (SCE), as required by the California
Public Utilities Commission (CPUC). SCE Rule 20 has three common sections: A, B and
C which are briefly described directly below.
1 Moreover this100-foot right-of-way (50 feet on each side of the center line) exists around
the tract up to about Paseo Del Pino. From Paseo Del Pino westward the south 50 feet is
confirmed to be a public street; the north 50 feet is designated a private street. However, that
designation is no longer legally valid because the City certainly has acquired a right-of-way in
this so-called private street by prescriptive easement. (See, Civil Code § 1009(d).)
2 The CPUC’s web site discusses Rule 20B undergrounding districts as follows: “Projects
in larger developments or areas that do not meet [Rule 20A] criteria can be performed as Rule
20B projects. At a minimum, the proposed project should involve both sides of a street for a
minimum of 600 feet. The applicant (residents, city, developer) is responsible for the installation
of the conduit, substructures and boxes, as well as paying for the cost to complete the installation
of the underground (electric, telephone and cable) system.”
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RULE 20A: Rule 20A districts are paid for and constructed by SCE through annually
allocated credits to the City. The annual credit allocation is relatively small, and it takes
many years to accrue enough credits for an undergrounding project. The City selects
projects with a public benefit and within the budget of the accrued annual credits. To
qualify as a Rule 20A project, the location should have a heavy concentration of overhead
facilities, be heavily traveled, be an arterial or major collector road, or must be located
within or pass through a civic, recreational, or scenic area.
RULE 20B: The City or residents may propose a Rule 20B project which is formed as an
Assessment District under Municipal Code Chapter 12.12. The boundaries of Rule 20B
projects must be agreed to by the City or the residents and SCE. The majority of the
undergrounding costs are typically paid for by the residents within the district. SCE is
responsible for contributing the cost of building a new equivalent overhead system.
RULE 20C (Private Projects): A privately financed undergrounding project is handled
exclusively by property owners and the utility companies. This approach can save
financing and administration costs associated with an assessment district. The Crest
Road Project is a Rule 20C project not governed by Chapter 12.12 of your Municipal
Code.
Attorney Malamud errs in his comparison of this Rule 20C privately funded relocation
of public utility power powers and transmission wires to the process of forming an
underground utilities assessment district under Rule 20B. The Municipal Code does not
require a public hearing for Rule 20C privately funded undergrounding projects.3 Once
SCE has approved the proposed undergrounding (which SCE has now done twice), the
remaining issue is the issuance of an encroachment permit for work in the City’s right -of-
way.
3 Rules 20C projects are defined on the CPUC’s website as follows: “Rule 20C projects
are less than 600 feet in length and typically involve one or more property owners. The
applicant(s) bear the cost of the entire undergrounding project and receive a small credit for the
salvage cost of the facilities, less depreciation, that do not go underground.”
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