When Ron and Holly Kirkish wanted to move, their real estate
agent told them to replace the cracked sidewalk outside their
home.
Gilroy – When Ron and Holly Kirkish wanted to move, their real estate agent told them to replace the cracked sidewalk outside their home. The thirsty roots of a city-planted tree at the end of their lot had mangled the sidewalk, but despite the city’s culpability the Kirkishes removed the notorious liquidambar and replaced the sidewalk anyway, splitting the cost 50-50 with the city.
Now the Kirkishes have decided to stay and are reluctant to plant a new tree at the city’s orders because they don’t want to deal with another root-ruined sidewalk down the road. On top of this, the state Streets and Highways Code says property owners must maintain their sidewalks in a safe, working condition, but they’re not responsible for portions of the sidewalk damaged by “any person other than the owner” who has “a right granted to him by law or by the city authorities.”
“Obviously the city knows exactly what the law is and has made a conscious effort to not inform its citizens,” Ron Kirkish said.
This begs the question: Where does a tree fall? It’s a sidewalk-damaging, city-sanctioned entity, and the city planted nearly all of the trees that are causing sidewalk damage, so should property owners have to pay at all?
“If it’s a street tree that’s caused the problem, then we’ll look at it and see whose responsibility it is,” said Assistant City Attorney Jolie Houston. “We have to look at each case on case-by-case basis.”
If a property owner ignores the problem, the city engineering department could repair the cement and then bill the resident, City Administrator Jay Baksa said. The city hasn’t placed a lien on a property for repairs since the late 1970s, and the city’s “50-50” program has contributed to that, he said.
But as the City Council aims to pass an ordinance transferring liability for sidewalk-related injuries to property owners, the threat of a lawsuit is motivation enough for homeowners to make repairs even though the trees causing much of the damage are city owned and, therefore, city-caused, according to section 5610 of the Streets and Highways Code.
“If you want to wait until the city has funds to totally repair the sidewalk, then you can do that,” Baksa said. “Residents don’t have to be involved in 50-50 program.”
The 50-50 program has taken on a life of its own in the past decade since “it’s a way to keep the money stretched as far as you can stretch it,” Baksa said. About 100 property owners are participating in the 50-50 fund, which has about $350,000 in it from gas taxes and the general fund, the source of any extra money needed to satisfy a potential flood of 50-50 applicants. The program has funded $2.7 million in sidewalk repairs since its inception in the early 1990s, Baksa said.
“Some cities take the stance that the property owner doesn’t have to pay anything,” Baksa said. “Some cities go to the extreme and make property owners cover everything, but Gilroy set up 50-50 to share the responsibility.”
Ron Kirkish dismissed the entire idea.
“There shouldn’t be a 50-50 program. It should be the city’s responsibility since the tree is theirs,” Kirkish said.
Across the street, Ron’s neighbor Melissa Witt agreed.
“The city planted the tree and then they want us to pay to have the sidewalk replaced and plant another tree that will ultimately cause the same problem?” asked Witt rhetorically. “The city won’t let us trim the trees, but when it’s time to take them down, we have to pay.”
The city has required street trees as part of its development process for several decades – “the goofiest idea I’ve ever heard,” said Kirkish – and this has produced “beautiful, tree-lined streets” like Miller Avenue, Baksa said. But the liquidambars the city planted in the ’70s and ’80s are now protesting.
“With the 50-50, we’re accepting responsibility, even though we don’t have to, because of the trees,” Baksa said. “We can solve more problems communitywide if we get citizen participation. There’s practicality to this.”
In essence, it’s the city’s responsibility because it planted the trees, but it’s the owner’s liability according to the potential ordinance.
Council candidates Perry Woodward and Cat Tucker have joined Councilman Craig Gartman in opposing the proposed sidewalk ordinance as unfair and burdensome.
When he was sitting on the council in 2005, candidate Bob Dillon said the council “broke the sidewalks with the trees, so council gets to fix them.” The then-councilman suggested that homeowners cut down the liquidambars, if they pleased, and replace them with a tree from a city-approved list, like the gentle-rooted swamp myrtle the Kirkishes have tentatively selected.
“Sidewalks have been a perennial pain in this city,” Dillon said recently, adding that he agreed with Gartman that the city should sell bonds to fix concrete headaches without burdening property owners.
But Councilman Roland Velasco wasn’t having it.
“It’s real easy for any candidate to say, ‘Let’s bond!’ but not have a plan for it,” Velasco said. “Plus, the sidewalk task force rejected the idea of bonding because of costs.”
Last year the city repaired all the Rosanna Street sidewalks without charging individual homeowners because the problem was so widespread, Baksa said, but most sidewalk cases are individual and require particular solutions facilitated by the 50-50.
While Holly Kirkish said the program was “very workable,” her husband remained irked.
“We haven’t gotten around to planting the new tree, but we plan on it … ” she said.
“Well, I don’t know,” her husband cautioned.
