Facing 37,000 sidewalk repairs and millions in injury payouts, San Diego wants property owners to step up — and assume liability [The San Diego Union-Tribune]

A rash of crumbling sidewalks across San Diego — and millions in payouts to people injured by them — have prompted city officials to revisit the controversial issue of whether property owners must fix damaged nearby sidewalks.

Because sidewalks may seem just as much the government's responsibility as roads, storm drains and other parts of the public right of way, many property owners are unaware state law has a special designation for sidewalks that makes adjacent property owners responsible for repairs.

City officials say they think that state law could serve as a catalyst to get property owners to help San Diego address a backlog of 37,000 sidewalk repairs and an estimated $185 million gap in funding needed to fix them.

But officials say it won't be easy to get many thousands of property owners to start repairing damaged sidewalks next to their properties voluntarily.

So they are proposing some carrots — a package of incentives, including slashing city permit fees for sidewalk repairs — along with one giant stick — a new city law that would go beyond state law to impose liability for sidewalk-related injuries on property owners.

The proposed city law — called a liability ordinance when cities like Sacramento and San Jose approved similar legislation — would be a significant shift.

While state law says abutting property owners are responsible for sidewalk maintenance and may be assessed the cost of repairs, property owners may not actually be liable for any damages incurred by people injured by sidewalks, unless a city approves an ordinance addressing liability.

The key incentive proposed by the city would be slashing permit fees for fixing a sidewalk from $2,200 to roughly $100 and allowing property owners to self-certify that the repair was done correctly.

City officials are also proposing a new policy prohibiting property owners from selling until city inspectors determine all sidewalks are in good condition.

They also hope to streamline the sidewalk repair process by eliminating the need for property owners to hire contractors and negotiate prices.

Under a proposed citywide sidewalk contract, the city would pay one company to perform many thousands of repairs more efficiently and cheaply, and then get reimbursed by individual property owners who would sign contracts in advance.

"We're never going to solve this problem just with city resources, we need to make sure that everyone is contributing," said Bethany Bezak, the city's transportation director. "It's a big transformational moment for how we handle infrastructure."

Some of the incentives are planned for this year, while others are expected to take longer, Bezak said.

Reducing the fees and allowing self-certifications will come first. And those changes will be combined with reviving a long-dormant policy of issuing notices of liability to property owners with particularly dangerous broken sidewalks.

City officials say they have roughly 5,000 broken sidewalks for which they would like to issue such notices immediately.

Bezak said this would encourage homeowners in two important ways: It would alert them to the dangerous broken sidewalks, and it would let many property owners know, for the first time, that they are responsible for nearby sidewalks.

While city officials have tried before to make property owners aware of their obligations, Bezak said city officials believe most are still unaware.

To soften the impact of that bad news, the city will lower its fee for an individual sidewalk repair from $2,192 to roughly $100, Bezak said.

"It's very cost-prohibitive right now for homeowners to do the repairs, and we want homeowners to play their part," Bezak said. "The system isn't really set up right now to encourage folks."

The property owner will still have to fund the actual repair, which can cost as much as $5,000. But the city fees would shrink dramatically.

Bezak said the city fees are easily eliminated relics of the past. Post-repair inspections remain important, but city officials propose allowing property owners to self-certify and have city inspectors spot check a certain portion of those repairs.

The spot-check inspections will likely require the city to keep charging a fee of roughly $100, Bezak said.

Another incentive would be point-of-sale city property inspections. The city could refuse to sign off on property sales until all broken sidewalks are fixed, either by the buyer or the seller.

Bezak said the proposed liability ordinance is probably the most controversial element of the city's proposal.

Thomas Leary, a local attorney who has won large settlements against the city on behalf of people injured by sidewalks, said a liability ordinance would be a terrible move.

"The city would just be trying to pawn off responsibility on someone else — homeowners who don't even know they have an obligation," Leary said. "It's nonsense. It's a non-starter."

Councilmember Joe LaCava said he can imagine the new law striking fear into many property owners, which he says doesn't seem right.

"That sidewalk in front of my house is not my sidewalk, it's the city's sidewalk and the city's curb and gutter and the city's street," LaCava told Bezak during a recent meeting of the council's infrastructure committee.

State law contradicts LaCava. Section 5610 of the California Streets and Highways Code largely places the responsibility for sidewalk replacement and repair on the abutting property owner.

However, liability is less clear. While Section 5610 says property owners are responsible for repairs, city officials say case law generally does not assign any related liability to property owners — unless they are directly responsible for sidewalk defects.

And state law does not say property owners are responsible for injuries.

That's where a liability ordinance would come in. City officials say San Diego should consider following the lead of many other California cities and pass an ordinance imposing the liability for sidewalk injuries on adjacent property owners.

In 1975, San Diego adopted its current policy, which says property owners are responsible for repairing normal sidewalk wear and deterioration as well as damage from private trees and private drainage structures.

The city takes responsibility when there is damage caused by parkway trees, grade subsidence, city-performed utility cuts and heat expansion.

But a liability ordinance would put the city in a much stronger position regarding any possible injury payouts, officials say.

Some city officials have suggested another solution could be shifting all costs to the city — and away from property owners — to simplify a confusing policy and avoid the inaction that often comes when owners can't afford repairs.

City Attorney Mara Elliott, however, issued a memo a few years ago saying that change would likely be a windfall — at taxpayer expense — for the insurance companies of property owners.

Councilmembers say drastic action makes sense with the city paying millions each year to settle lawsuits filed by people injured by damaged sidewalks.

"I'm really excited to see how much attention we're paying to sidewalks, because I know all of us are really tired of paying all the claims out for trip-and-falls, which are enormous," Councilmember Marni von Wilpert said.

And the city is facing steadily greater liability as more people ride bicycles on sidewalks, where even the smallest lip can cause a crash with significant injuries.

Among the city's many settlements resulting from damaged sidewalks, the largest was $4.85 million paid to Del Cerro resident Clifford Brown for a 2014 crash in which he tore spinal cord ligaments and lost several teeth when he and his bike were launched 28 feet by tree-damaged sidewalk.

This story originally appeared in San Diego Union-Tribune.

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