Public Comment

Got Plants in Oakland? Watch Out!

By Robert Brokl
Wednesday December 01, 2010 - 12:39:00 PM

Oakland’s Blight Ordinance was enacted during the administration of Mayor Elihu Harris. Most community activists supported it at the time, hoping some of the most glaring and intractable instances of blight could be corrected: vacant lots or front yards with dead cars and refrigerators, illegal dumping, empty and deteriorating buildings. But, as the cliché goes, be careful what you wish for. Your prized landscaping, important to you for screening, aesthetics, and habitat has also come to be, in unexpected ways, defined as blight. Because of the extraordinary powers of the City to collect heavy fines and fees on seemingly open-ended blight investigations and massive City deficits, the ordinance has been redefined.  

But most Oakland residents no doubt still assume the ordinance, enforced by the Community and Economic Development Agency’s (CEDA) Building Services Dept., is targeting major offenders. Most would also be unaware that a repeat offense within an arbitrary two year period results in a fine of over $1300. (Even a repeat violation for blocking street sweeping remains a bargain at $63. every time.) Standards are imposed so loosely that two different inspectors can have two radically different takes on the same problem. Until November we were in that privileged group. A California bungalow Alfred Crofts and I rented out for 10 years on a busy corridor fell under the plant blight purview. We had naively assumed the blight ordinance targeted, as its language stated: “...overgrown or dead or decayed trees, weeds or other vegetation, rank growth, dead organic matter, rubbish, junk, ...” The Portuguese family that lived there for decades had a garden and many specimen plants. We added plants of our own, to buffer the street and traffic noise, to act as a barrier against break-ins, screen for privacy, and make the place more attractive. We assumed the house and garden were an amenity and didn’t even complain that the existing street tree planted directly over the sewer line caused $13,000 in damages. We also pay steep business taxes and license fees on the rental. In May, a neighbor, objected to the plantings and contacted a City employee who forwarded an e-mail to a CEDA employee handling blight complaints. (We have not received a great deal of cooperation with our Public Records Act request. That scenario is what we told by a CEDA inspections supervisor--a CEDA employee is the named complainant.) The notice we received stated our “property exhibits the following violation(s): Overgrown vegetation, overgrowth obstructing public right of way.” We trimmed the offending blooms at the sidewalk, the inspector was courteous and thanked us for the prompt work. That, we thought, was that. We were not told that we had just been charged with a “first strike” with the “second strike” meaning huge penalties. Last month, we got a certified letter, citing us for the same violation(s), with again no further writtten explanation. Then a bill demanding $1249. in fees, due in less than a month. Another bill just arrived demanding $30 more just for “preparing prospective liens or preparing prospective releases.” Threatened in the letters is foreclosure and sale of the property. Appeals are possible, but the appeal(s) will cost an additional $113 each if lost. The second inspector on the case criticized the entire garden: plants touching balustrades, plants in front of windows or doors obstructing “light and ventilation.” Sidewalks had to be totally clear “edge to edge,” curb to edge of sidewalk on “our side” and straight up 6 feet, 8 inches. No branches touching roof. No plants growing between cracks in concrete. No unraked leaves. The steep fines were a good motivator to research the ordinance and other relevant standards, if for no other reason than to make sure we would avoid such penalties in the future. This is where we learned how much ambiguity and subjectivity were involved. After much time and energy spent on research and the frustrating public records search, this is what we know and what every home and apartment owner/renter with a garden in Oakland should watch out for:  

The Differing Right of Way Requirements  

The inspector in May wants 36” clearance on the sidewalk. Lee White, a CEDA employee handling “engineering design and right of away management, ” told us he prefers 48” but said ADA requirements, Title 24, California and City of Oakland building codes, etc. all had varying and overlapping requirements. “Point constrictions” can narrow right of way. The inspector on the site visit thought “42” or two people walking abreast” was “reasonable.” The latest inspector and his supervisor are applying the most rigorous interpretation (“property to face of curb”) of Oakland Municipal Code 12.04.070-” Grass and other obstructions. Every owner of real property in the city shall keep the entire sidewalk in front of such property, from curb to lot line, free and clear of all grass, weeds, rubbish, or other obstructions or materials which from any cause whatever shall have accumulated or may accumulate upon such sidewalk above the established grade of same.” Grass or leaves maybe, but does this include landscaping? The space between table and chairs and curb plantings at the Nomad Cafe on Shattuck are on average 21.” The fortnight lilies planted curbside at the Jane Brunner- sponsored new entrance to Bushrod Park overhang the sidewalk and constrict it to about 30.” Lines of customers and the ironing board “tables” outside Bake Sale Betty’s, on a busy day, may block passage. All blight? Using our newly sensitized eyes to “blight,”our recent dog walk near Frog Park in Rockridge was ruined when we saw blight from landscaping nearly everywhere!  

Contradiction Between Public/Private Responsibility  

The backlog for repairs to sidewalks broken by City street trees is decades-long. Those repairs that are made are concentrated on major corridors: the sidewalks on 51st, Telegraph to Broadway, are in their third incarnation. The sidewalk in front of our residence crumbled decades ago from the City’s street tree, as did the asphalt patch placed there as a “temporary” fix. Many passersby just walk by in the street, avoiding the sidewalk altogether. Reminded of our own near total lack of right of way, and one not caused by landscaping, Council aide Zack Wald sighed and said “someone was going to fall and collect tens of thousands of dollars from the City.”  

Complaint-Driven  

Calls to council offices revealed unhappiness with the ordinance, where one neighbor can impose community standards. One aide volunteered someone had maliciously reported numerous “violators.” The aide said the outcry wouldn’t be so strong if the fees weren’t so outrageous. Feedback from neighbors and community activists reveal a pattern of grudge complaints and inspectors conducting fishing expeditions with no end in sight and costly re-inspections. A realtor of our acquaintance routinely called in blight complaints about properties near houses he was about to list. An activist suggested blight complaints in the Hills over excessive vegetation may be more about obstructed views than blight. One also assumes a large percentage of complaints emanate from the Hills and more prosperous areas--a “code of silence” (fear of retaliation?) has existed in the flats where, paradoxically, more true blight exists. The excessively steep fees and fines, along with the vague and elastic interpretation available to inspectors, may encourage payoffs and noncompliance. One-person standards may trump community standards.  

“Two Oaklands”: Green Concrete or Green :  

The explicit message from CEDA is a reaffirmation of the safer course of concrete and cyclone fences, or as the Blight Ordinance brochure puts it: “Keep your yards neat and tidy...” On the other hand, landscaping is often calculated as 10 per cent of a home’s value, and neighborhoods like Rockridge are defined by lush plantings and trees--the “community standard”, maintained and underwritten often at considerable cost by the property owner but benefitting all. Narrow side yards and shallow front yards call out for screen plantings. Habitat supports vulnerable bees and birds, and trees soak up carbon. Deciduous trees shade in summer and let sunlight though when bare, saving energy. Councilmembers have embraced street trees and greening Oakland, but the rhetoric hasn’t kept pace with the City’s insatiable need for fees and fines, and a permanent, mostly faceless bureaucracy that makes and enforces its own rules. Why should the City mothers and fathers wonder why the voters have started voting down tax hikes in the secret sanctuary of the voting booth and buy cars and big appliances outside the City limits, perhaps feeling they’ve already paid the City enough “fees.”  

Prop 26:  

Voters recently passed this proposition, which redefines many regulatory fees as taxes, requiring a 2/3 vote of the legislature and voters. The blight ordinance is moneymaking, and employees handling complaints are on staff and salary, not private contractors hired on a case-by-case arrangement. We understand the City Attorney’s office is studying the proposition’s implications for Oakland--a call to that office by us on this issue was not returned. But--put this down and rush outside to rake: Oakland handles 22,000 blight complaints a year. Your number may be up next.