BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2231
                                                                  Page  1

          Date of Hearing:  April 18, 2012

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                                Cameron Smyth, Chair
                AB 2231 (Fuentes) - As Introduced:  February 24, 2012
           
          SUBJECT  :  Sidewalks: repairs.

           SUMMARY  :  Shifts responsibility and liability for dangerous or 
          inoperable sidewalks from adjacent property owners to local 
          agencies, and prohibits local agencies from imposing assessments 
          on adjacent property owners for repairs.  Specifically,  this 
          bill  :

          1)Requires that when any portion of any sidewalk is out of 
            repair or pending reconstruction and is in a condition to 
            endanger persons or property or is in a condition to interfere 
            with the public convenience in the use of that sidewalk, a 
            city, county, or city and county shall repair that sidewalk, 
            if a) that sidewalk is owned by that city, county, or city and 
            county, or b) the repairs are required as a result of damage 
            caused by plants or trees.

          2)Imposes liability on the city, county, or city and county for 
            any injury resulting from that entity's failure to perform the 
            required repairs.

          3)Prohibits any city, county, or city and county from imposing 
            an assessment against the private owner of the property 
            fronting on any portion of a sidewalk for sidewalk repairs 
            under this section. 

          4)Makes findings and declarations that these provisions 
            constitute a matter of statewide concern, and shall apply to 
            charter cities and charter counties. Such provisions shall 
            supersede any inconsistent provisions in the charter of any 
            county or city. 

           EXISTING LAW  :

          1)Requires the owners of lots or portions of lots fronting on 
            any portion of a public street or place to maintain any 
            sidewalk in such condition that the sidewalk will not endanger 
            persons or property and maintain it in a condition that will 
            not interfere with the public convenience in the use of those 








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            works or areas, except as to those conditions created or 
            maintained by persons other than the owner.

          2)Requires the superintendent of streets, as defined, to provide 
            specified notice to the owner or person in possession of the 
            property fronting on that portion of the sidewalk so out of 
            repair or pending reconstruction, to repair the sidewalk.  
            Under existing law, if the repair is not commenced within two 
            weeks after the notice has been provided, the superintendent 
            of streets shall make the repair and the cost of the repair 
            shall be imposed as a lien on the property.

           FISCAL EFFECT  :  Unknown.  This bill is keyed fiscal and a 
          state-mandated local program.

           


          COMMENTS  :

          1)This bill is intended to speed the repair of damaged sidewalks 
            by declaring cities, counties and city and counties to be 
            financially responsible and liable for damaged or inoperable 
            sidewalks, while prohibiting those local entities from 
            assessing adjacent property owners for repair costs.  AB 2231 
            is author-sponsored.

          2)According to the author, "in October 2011, the Los Angeles 
            City Council angered homeowners by considering a plan to 
            repeal a 1974 ordinance that made the city responsible for 
            sidewalk repair.  For the last 30 years, the City assumed 
            responsibility for most sidewalk repairs, but has not 
            maintained the sidewalks or the trees.  Almost half of L.A.'s 
            sidewalks are in some state of disrepair, mostly due to tree 
            roots pushing through concrete and causing cracks."

          The California Association of Realtors supports the measure, 
            contending that "California's older neighborhoods are 
            suffering from high levels of sidewalk disrepair due to trees 
            planted by local governments.  Governments seeking to cut 
            costs are unfairly considering transferring the responsibility 
            of sidewalk repair and the liability for trip-and-fall claims 
            to private property owners fronting the sidewalk.  AB 2231 
            (Fuentes) rightfully stops local governments from shirking 
            responsibility for these sidewalks and protects property 








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            owners from huge repair and legal costs for damages they did 
            not produce."

          3)According to a November 2011 Los Angeles Times article, the 
            City of Los Angeles voted to assume responsibility for 
            sidewalk repair in 1973, allocating $2 million for the work.  
            The federal money ran out in 1976.  Since 2000, the city has 
            spent about $95 million to replace 550 miles of sidewalk.  
            According to an October 20, 2011 report by the Daily News, the 
            City of Los Angeles has nearly 11,000 miles of sidewalks, 
            about 4,700 miles of which still need repair.

            Beginning in 2010, the Los Angeles City Council began 
            considering a variety of proposals for addressing the backlog 
            of broken sidewalks, including a requirement on home owners to 
            make repairs, as well as requiring repairs as a condition to 
            the close of escrow when a home is being sold, and continuing 
            the current policy of making temporary repairs using asphalt. 
            According to the author's office, the city has not yet taken 
            action on this point, but public discussion and debate over 
            the matter continue.  

            Under current law, the responsibility for repairing sidewalks 
            lays with the owner of the adjoining property, unless the 
            dangerous condition was created by another.  The locality's 
            superintendent of streets is empowered to notice the adjoining 
            property owner of the damage, and if it remains unfixed after 
            two weeks, the local entity may commence repairs and impose 
            the cost as a lien on the property.  Legal liability for 
            injuries caused by a broken sidewalk will differ based on the 
            specific circumstances.

            This bill would shift the responsibility for repairing 
            sidewalks to the local entity in almost all cases, except for 
            where privately-owned sidewalks have been damaged by causes 
             other  than trees and plants.  That means this bill as written 
            will shift responsibility for repair and liability to the 
            local government for all sidewalks damaged by trees, whether 
            privately owned or not.   

          4)According to a Daily News article dated October 20, 2011, it 
            estimates that between "$4 million and $6 million is spent 
            every year on liability claims, and the total cost estimate to 
            repair the sidewalks is between $1.2 billion and $1.5 
            billion."  A bond measure to fix the city's sidewalks was put 








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            before the voters in 1998, but was rejected by 60% of voters.  

          A November 2011 Los Angeles Times article stated that it can 
            cost $250,000 - $300,000 
          to repair a mile of sidewalk.

          A separate May 2010 article by the Los Angeles Times stated that 
            "the city spends $3 million to $5 million a year to defend or 
            settle cases arising from sidewalk-related "trip and fall" 
            injuries.

          5)The Consumer Attorneys of California oppose the bill because 
            of the sweeping nature of its liability provisions, which 
            shift the legal responsibility for any related injuries to the 
            local agencies.

          "We believe current law relating to sidewalk liability is 
            working and changes are unnecessary.   Under current law, a 
            person injured on a defective sidewalk has the option of 
            examining the facts specific to that incident and injury and 
            has the option of filing against the public entity and-or the 
            homeowner for her injuries, depending upon the situation.  
            Each factual incident is different so sometimes there may be 
            clear negligence on the part of the homeowner and sometimes 
            there may be clear negligence on the part of the public 
            entity.   In addition, a homeowner may have insurance 
            available to cover the negligence.  Each particular case and 
            injury is different and we do not believe a statutory change 
            is necessary or warranted."

          6)The League of California Cities and the California State 
            Association of Counties oppose the bill primarily because of 
            the increased financial costs: "?mandating cities and counties 
            to incur sidewalk repairs would result in significant 
            financial losses, resulting in the diversion of funds from 
            projects that benefit the entire travelling public?It is 
            difficult to justify repairing a sidewalk for a homeowner in a 
            residential neighborhood instead of filling potholes on a 
            thoroughfare that serves as a primary route for the movement 
            of people and goods?"

            Furthermore, AB 2231 would also interfere with local control 
            and the prioritization of limited funds:  "ŬS]ome cities and 
            counties have programs scheduled years in advance to repair 
            sidewalks street by street at no expense to the homeowners.  








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            The level of fiscal commitment to the repair of sidewalks 
            should be left with cities and counties who are best equipped 
            to assess available resources and prioritize projects that 
            benefit the community as a whole?ŬS]hifting sidewalk repair 
            responsibilities and liability for injuries will likely result 
            in the reduction of new sidewalks built?Ŭand cause] additional 
            strain on local General Fund monies normally allocated to 
            public safety and other vital programs and services." 

          7)In 2008, this Committee heard AB 1985 (Stickland), which would 
            have repealed current laws regarding sidewalk repairs, and 
            held liable the owner of the property on which the sidewalk is 
            located - usually a local public entity - for all repairs and 
            maintenance of the sidewalk.  Opponents criticized the bill as 
            disrupting local control of sidewalk repair and adding to the 
            fiscal strain felt by local agencies.  The bill failed passage 
            (2-5) in this Committee on April 9, 2008.

          8)This bill is keyed a state mandate which means that if the 
            Commission on State Mandates deems this a reimbursable 
            mandate, then the state could be responsible for all of the 
            notice and other costs associated with this bill. 
                
            9)Support arguments  :  According to the author, " In Los Angeles, 
            - and throughout California, homeowners should not be forced 
            to pay for maintenance, when trees that they did not plant 
            tear up their sidewalks.  AB 2231 simply ensures that local 
            entities will remain responsible for sidewalk damage, rather 
            than trying to have property owners foot the bill." 

             Opposition arguments  :  According to the League of California 
            Cities, "Ŭt]he 'one-size fits all' approach outlined in AB 
            2231, would create a costly and inefficient maintenance system 
            that fails to take into account numerous considerations 
            relevant to the public safety of residents, infrastructure 
            planning, and limited resources."

          10)This bill has been double-referred to the Judiciary 
            Committee. 

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Association of Realtors








                                                                  AB 2231
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          California Apartment Association

           Opposition 
           
          California State Association of Counties
          City of Lakewood
          Consumer Attorneys of California
          Counties of Los Angeles, San Joaquin, and Ventura
          League of California Cities
           
          Analysis Prepared by  :    Hank Dempsey / L. GOV. / (916) 319-3958