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A <br /> To: City Council Facilities and Transportation Committee <br /> From: City Attorney <br /> Re: Legal Questions Related to Discussion Regarding Private Sewer Lateral Replacement Policy <br /> Date: April 12, 2011 <br /> Page: 4 <br /> The first implication is that the public, and all of the affected Dowling Triangle property <br /> owners, may continue to use the DTSL consistent with its historic use. Another implication <br /> is that the affected property owners cannot require the public or other Dowling Triangle <br /> properly owners to cease the use, or to impair the use without incurring great legal risk that <br /> should they do so, and a sewer failure occurs on a neighboring property, the responsible <br /> property owner would be liable. <br /> A further implication is that the Gty may accept this dedication. This is important because <br /> of the distinction between a public sewer line and a City sewer line. A public sewer line is <br /> available for use by the general public, but, legally, it is not part of the City's sewer system" <br /> Thus, the Gty has no legal responsibility for the repair or maintenance of the DTSL or a <br /> public utility easement for the DTSL, even though historicallythe City provided <br /> maintenance services. If the City accepts the sewer line, then it becomes part of the City's <br /> sewer system, and the City accepts all liability associated with accepting and owning the line. <br /> cwtian <br /> If the City were to accept the implied-in-law dedication of the DTSL, the City would bear <br /> the maintenance, repair, and liability for damage caused by a failure of that line. Because the <br /> dedication does not arguably include access rights, the City is impaired from providing on- <br /> site maintenance, repair, and replacement unless it purchases access or obtains access <br /> through condemnation; both options are probably beyond the City's financial means. In <br /> addition, given the location of the line underneath structures and in backyards, City staff has <br /> advised that it would be too costly to repair or replace the old line in its current location. If <br /> the City does not accept the line, then the risks of damage because of a failure belong to the <br /> property owners. <br /> Staff also questioned what is the City's legal risk if it does not accept the dedication, and <br /> ceases to provide maintenance to the line. In our opinion, the City has a strong legal <br /> argument that it has acknowledged and mitigated the known dangerous condition of the <br /> structurally unsound and compromised DTSL by providing an alternative new main sewer <br /> line in the public right of way to which property owners may connect. And, under San <br /> Leandro Municipal Code section 3 -14640 the operation, maintenance, and repair of private <br /> sewer laterals are the responsibility of the property owner. The Code further provides that <br /> any person responsible for a sewer overflow must take immediate action to contain, control, <br /> and cease the unauthorized discharge and institute all actions to remedy the effect of the <br /> discharge, with all costs borne by the discharger. The Code is clear that property owners <br /> would be responsible should the DTSL fail. <br /> 9 DiMar im v Qty gtOn'nn (2000) 80 Cal. App. 4th 329. <br /> A PROFESSIONAL LAW CORPORATION OAXLAND LOS ANGELES SACRAM EN I SAN FRANCISCO SANTA ROSA FRESNO <br />