Wednesday, September 06, 2006

Encroachment of retaining walls into the right-of-way

September 6, 2006

City Council
315 East Kennedy Boulevard
Tampa, Florida 33602

Re: Encroachment of retaining walls into the right-of-way
September 7, 2006 Agenda, Item 7, File No. E2006-8 CH27

Dear City Council Members,

I am writing to express the views of the Old Seminole Heights Neighborhood Association (“OSHNA”) concerning code violations resulting from retaining walls built in the right-of-way. As more fully explained below, OSHNA strongly supports an expedited administrative remedy with a minimal fee to cover administrative expenses, or no fee in cases where the retaining wall provides a public benefit.

Council needs to be aware of the scope of the problem. In Old Seminole Heights alone, we estimate that there is in excess of 1000 locations where there are retaining walls that are potential code violations. Many of these walls are over 50 years old, although there are also many newer walls. Some walls run along the entire front of the property, in other cases the walls are limited to landscaping or the right-of-way portions of walkways up to the house. A large percentage are located on properties without sidewalks where it is difficult to determine where the property ends and the right-of-way begins. Finally, in an overwhelming majority of cases, the removal of the walls will cause the yard to collapse into the street, undermining the structural foundation of trees and exposing utility meters and pipes and cables.

I have discussed this issue with Gloria Moreda and Jimmy Cook. They advised me that the current remedy for a right-of-way violation is to obtain an encroachment permit. This involves a $400 fee, a survey (an additional $400) and review by no less than 15 city departments and utilities. This is clearly overly burdensome for a homeowner, especially given the nature of these encroachments. However, Gloria also indicated that an expedited remedy is being drafted for consideration by Council. Under this review, a homeowner could submit a digital photo of the encroachment, along with a hold harmless agreement and a minimal fee. While Gloria was clear that Council would decide the fee, $25 was discussed as a potential amount.

Whatever the final amount, it should be minimal enough to encourage homeowners to apply for the permit. The worst case scenario is a homeowner that decides not to pay a fee and instead removes a violating wall. This can result in, as mentioned previously, erosion of soil, exposure of utility lines and meters, instability of sidewalks and deteriorating root structures of trees within the right-of-way. Any of these consequences could expose the city to liability and would require correction by the city at potentially great expense. We respectfully submit, therefore, that it is in the city's best interest to be flexible in permitting or grandfathering the existing encroachments, especially where the wall provides the public benefit of protecting the right-of-way.

OSHNA is willing to work with the city to help identify properties with potential violations and recruit those homeowners to take advantage of the expedited review. This is a wonderful opportunity for the neighborhood and the city to work together to resolve an existing problem in a way that is least burdensome to the homeowner and still protects the rights of all parties.


Randy Baron
Old Seminole Heights Neighborhood Association


Anonymous said...

I hope they know what they are doing with this one..
I can see the lawsuits already.
Anytime someone gets hurt on one of these and they sign a hold harmless agreement the homeowner gets popped with a big fat lawsuit.
I hope the association makes them aware of the potential for liability that the city is pawning off on the unsuspecting homeowner.

Anonymous said...


Savemyhouse said...

There is a potential for liability and I am sure the city wants to hand over the keys.
That means if there is a car accident or someone trips over anything, even if the city put something on the right of way the homeowner can be sued?
What kind of crock is this?
I would rather move my retention wall back a little than lose my home.

ranbar said...

The hold harmless protects the city where the proximate cause of the damage is caused by the permitted encroachment. This is standard in any case where person A wants to build something on person B's property. It is required in the current encroachment permitting process and City Council will not pass an expedited process without it. The hold harmless also allows the city or its agents (ie utilities)to tear up the encroachment without you being able to sue them for the damage.

As for moving the encroachment, as suggested by Savemyhouse, that is certainly an option. No one is forcing a homeowner to sign this agreement. The fact of the matter is that at some point in time someone built something on city property. The city is saying that they will let you keep it there if you want, but to be legal you need to jump through this hoop. If you don't jump through the hoop and you keep the encroachment, the city may (or may not) cite you with a code violation. Also, if you keep it without the permit, you will still be subject to liability if it causes an accident. Ultimately, the choice is up to the homeowner. But if the homeowner does decide to get the permit, I would sure rather have them pay $25 (or have the fee waived completely) than have to pay $400 and the cost of a survey.

Anonymous said...

When can we expect this plan to be implemented? Are code violations for having one of these still on hold until a final decision is made?

Anonymous said...

this issue is being discussed on the city council agenda today - I tihink it is number 7 on the list of topics.

Bungalowlady said...

Glorida Moreda from Land Development was at city council this Am and recommended that Land Development in conjunction with traffice (Roy LaMotte) review all codes dealing with retsaining walls and re-write those that they feel need it. The city agrees that removing all the retaining walls in the right-of-way is prohibitive. Thus, on Oct 19th, Land Development will return to City Council with proposed code changes. Stay Tuned! We'll see what they come up with.

Bungled Mess said...

Bungled up lady, why would you want this code rewritten?
We are now responsible if someone gets hurt on the right of way instead of the city being responsible.
The city is totally taking advantage of us.
And besides, I don't like them that close to the road anyways.
Randy doesn't speak for all the residents so please don't attach my name to the letter.
No one on my street is in favor of it.

ranbar said...

Bungled Mess:

The question is not whether the walls, or any other encroachments in the right-of-way, are code violations. They are. No matter who built them, no matter when they were built. They are. The question is how to make them "legal" so the homeowner is not subject to being cited. Under the current procedure, the homeowner pays a $400 fee and fills out an encroachment permit application that includes a recent survey and a hold harmless agreement ("HHA"). The application is then reviewed by 15 separate city departments and utlities before a decision on the permit is made. This procedure was designed more for commercial encroachments and is overkill for residential issues like a retaining wall.

The proposed expedited procedure greatly reduces the cost, supporting documentation and time to get the permit. It is still being drafted and OSHNA intends to have input into the final requirements, including the amount of the fee and the necessity and terms of the HHA. One thing is certain, however - signing a HHA will not be a blanket indemnification for anything that happens on the right-of-way. Indeed, city staff has indicated to me that the HHA may be limited to protecting the city in case it damages the encroachment during maintenance of the right-of-way. I will reserve judgment until I see an actual draft.

The final draft will be presented to City Council, who will then vote on it after public comment. If anyone has issues with the terms, that will be another opportunity to express their views.

Once the new procedure takes effect, it will still be up to the homeowner to take advantage of it. Should a homeowner choose not to get a permit, they will still be subject to being cited by code enforcement and they will still be liable for any damage caused by the encroachment.

As I find out more details of the proposed procedure, I will post them here and on OSHNA's website. The ultimate goal is to give all homeowners with any right-of-way encroachments, not just limited to retaining walls, a cheap (or free), quick and easy way to become legal.

Help Meeeeee said...

But some of them I like...the guy at the corner of 9th and Powhatan, and some of them I don't.
They are old, ugly, or just a little too big.
Some of them need to be replaced.
I think their should be a height limitation on retaining walls of around a foot or so.
I dont think this is unreasonable.
I would rather not have any than have to look at ones that look ridiculous.
As I understand it a HHA is a lawyers dream for the city.
You cant sue the city and you have to go after the homeowner which leaves me wide open for lawsuits.
All someone has to say is that the wrecked their car bc my retaining wall interfered and there goes my house.
If the city didn't require an HHA I would agree with you and see your point.
I think that is a fatal mistake for us.
The HHA will make you liable for any accident or mishap on the right of way.
The amount of people that sue, and probably sue the city too nowadays is crazy.
If there were height limitations and an HHA waiver I would agree with you and so would most of my neighbors I think.
Maybe we can work towards peace if those two things are done, HOWEVER..I cant attend meetings because I work.
So here is my official input.

Anonymous said...

Actually Florida protects homesteads pretty well. You may spend a lot on attorney fees but they can't take your homestead.

Anonymous said...

You wont be able to sell either with a lawyers or a judgment lien.

Bungalowlady said...

In theory limiting the location and the height of the retaining walls is an exellent idea. In reality it won't work.

Many of our houses were built way above the roadways. The water meters were placed on the house side of the right-of-way and then the sidewalks were put in. For some residents, removal of the retaining walls would cause the city to re-do all the water pipes and water meters, cable, etc., and re-build the sidewalks. For some of the homeowners the removal of the reaining walls would be undermining their home's foundation.

There has to be a reasonable solution. The city is working on it and we will reserve judgment until the city presents their proposal on Oct 19th.

Anonymous said...