Surveyors Right of Entry - Worthless in San Jose!

[PLS7393]

Situation:
A 11 story high rise in downtown San Jose has broke ground without a record map filed. I guess the City doesn't care as long as they get their fees.
The adjoining property owner hired me to set property corners and file a record of survey map. The construction site has a temporary fence near the property line, but partially on my clients property, and cutting across a 6.2' jog in the PL. The jog is mid way between streets as my site encompasses 2 lots from one street to the other.

The site has 24 hour security, and when I asked to gain access to the corner, I was denied. The guard called his supervisor and obviously I'm not on the list of companies authorized to have access. So what do I have to do in attempt to satisfy my contract, and set the property corner for my client? Mind you the first site visit was mid week, and due to safety concerns and necessity to close a lane of traffic I selected to go back early Saturday morning. Surveyors use to have a Right of Entry, so I called San Jose Police Dept. for assistance in gaining access. What a waste of time!!! Four bicycle officers show up and only two will talk to me. The first officer read the 5th and 6th word on the Surveyor's Right of Entry card and told me this is a Civil Case, they can't do anything, and suggested I contact City Code Enforcement, really? (Like that will help). I even told the officer that they will say to hire a land surveyor. The same officer said that they also can't do anything because he doesn't know where the property line is, well Duh!!! What am I doing? I gave up with officer #1, and tried talking sense to his partner so I could get somewhere. At least Officer #2 read the whole Surveyor's Right of Entry card, with a couple sighs and huummm along the way, so I think it made sense to him and what I was trying to do. His comments were that as stated it is the responsibility of the owner (big corporation), so we have to contact the owner for access. They didn't care when I pointed out a few words later it also states "tenant who owns or controls property to provide reasonable access". Orion Security is the current people who controls the property and should allow access, but they didn't see it that way. The officers even stated that if I dismantle the temporary fence, or move it with the truck to push off of our site to allow access, they would arrest me for vandalism since the fence is not my clients, but on our property! San Jose PD "To Serve and Protect", ya right!

Oh, I even showed the officers the Novato Police training article about property lines, and the right of access that Larry Stevens was successful in educating, but the couldn't care and wouldn't read. I tried to educate this guys, but to no avail.

We have to follow the rules from the Board, but what good are these codes if you can't use them to do your job?

My record of survey will have a note explaining why the one corner was not set. Something in line to; access rights denied by San Jose Police Dept. as authorized under codes . . .

So this is the second attempt to use the Right of Entry, one being the complainant and one the defendant. Both times just a big waste of time, except I truly see the little value in this, as the officers in both cases threatened to arrest me if they have to come back.

[Lee Hixson]

I would go back to the police and go up the ranks. I can't imagine that there won't--finally--be someone who will see the light and grant you a civil standby while you do your work.

[mpallamary]

I would contact your local television station and tell them what happened. Tell them it will make for good TV as they can watch and ask their own questions. Ratchet it up through the media.

[mpallamary]

I would also send a certified letter to the District Attorney and I would CC the local newspapers (not TV).

[mpallamary]

You should also see if your CLSA chapter will send an educational letter explaining how the law works.

[Scott Tikalsky]

Lee is right. You should try working up the command ladder. Try talking to the shift Sergeant in charge of that area. Also, did you show them the Penal Code 608.2 when talking to them? Some law enforcement will not work with the Civil code but will when shown a Penal Code section.

[E_Page]

I agree with Lee and Scott. Reasonably explaining to the local PD chain of command is likely to get you a reasonable response. Trying to create a media firestorm is certain to get you no willing cooperation from local PD, and is not likely to do your client any good in the near term.

[mpallamary]

I respectfully disagree. This is a perfect media story. I would make it a big deal. Speaking personally, this has always worked for me.

We should speak up and be heard!

Do not be afraid.

http://www.nbcsandiego.com/news/local/A ... 43201.html

[LA Stevens]

Three of us from Marin CLSA meant with one of the attorneys from the Marin County Counsel's office. After the meeting, she was able to get me a time at the monthly meeting of the City and County Police Chiefs Monthly Meeting that the District Attorney presided over. After my presentation, we have not had any problems with the local police departments in the area. They have offered to standby if we think a problem might arise.

I'll write a letter to many of the adjacent property owners prior to going to the field and also cc'ing the local police department so they know we are in the area.

It did take quite a while get that done. I'd start with the County Counsel to see if they could intervene with the police department you are having trouble with.

[PLS7393]

Yes Larry,
I'm sure it took you a long time to get where you did, but I do not have the luxury. The Board has recently told me to pick my battles on other projects, so what am I suppose to do with no budget or time to follow up? I am waiting to hopefully hear what the Board has to say about this, in support of their licensee, because I would be representing the entire surveying community.

Furthermore I will be following up with the contractor when in the area to get the temporary fence moved off of my clients property, and potentially get the adjoining surveyor to file his/her map, after my ROS. I do not need to set the missing property corner since it is only 8' +/- away, and I explained it to my client. He is ok with it, and I said I will attempt to set it next time I'm in the area, since I do not think the contractor will keep me out of the site.

Yes it is now personal, I have the two officers names and badge numbers (SJ doesn't give officers business cards the officers said).

In my opinion, these are the types of issues both CLSA and The Board should be working with the private surveyors to make real headway in our profession, and "To Protect the Public".

[PLS7393]

Penal Code 608.2 when talking to them?

Scott,
I do not find the referenced section and think you have transposed numbers? Not to mention how does that assist a surveyor to gain access?
I think you are confused on the situation.

[DWoolley]

Penal Code 602.8 (a) - Trespass

PLS 7393, will you elaborate on the basis of being told to pick your battles? What battle were you waging?

Restating the obvious, neither budget or time constraints will prevent a charge of negligence.

We are struggling with the same issue as I write. We know the monuments exist - we found them our first day onsite. The two subsequent trips we have had three separate owners, for various reasons, not allowing us access to measure. A reasonable excuse to ignore these monuments in our establishment? Nope.

We are sending a letter this week telling each of the owners that if they do not arrange access we will arrange access with the sheriff's office. Project is dead in the water until we complete our work. This is precisely what separates us, as a collective community, from the hacks. The hacks simply ignore the monuments.

DWoolley

[PLS7393]

Penal Code 602.8 (a) - Trespass

PLS 7393, will you elaborate on the basis of being told to pick your battles? What battle were you waging?

DWoolley

Who is trespassing?

If you read my situation, I am not recovering any monument. Just need to set one last property corner, but can easily not set it and still show the correct boundary on the ROS, so there is no negligence on my part. The note will explain why one corner was not set.

It doesn't matter the details of my inquiry(s), as the statement has been generally used. This is another example of how much time do I want to waste on SJPD, verses the time I can spend working with existing clients to complete their project. Education is everyone's responsibility yes, but a huge burden for a one-man survey business. Maybe you can send qualified personnel to assist me, while I go educate SJPD, lol.

Maybe the Orange Co. PPC can take on the task to educate the department and I would be happy to assist with the officers name and badge numbers.

[BrianSpore]

Keith,
The trespass issue comes in when you as a Land Surveyor enters onto private property as outlined in both the Civil Code and the Business and Professions Code. I forget what year it was that because of law enforcement issues like these and most law enforcement officers do not know those two code sections it was added to the Penal Code, all law enforcement officers are supposed to be know in all sections of the Penal Code. Penal Code 602.8 (a) states what trespass is, 602.8 (c)(4) gives the exemption to Land Surveyors.
602.8 (c) Subdivision (a) shall not apply to any of the following:
602.8 (c)(4) Any person licensed pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code who is engaged in the lawful practice of land surveying as authorized by Section 846.5 of the Civil Code.
That bit of information should have made the LEO inform the security guard that you can not be charged for trespass.

[dmi]

Your first mistake is trying to talk to beat cops about this. The second mistake is not giving them the Penal code section. You always want to contact the watch commander and if that does not work then contact the City Attorney, not the District Attorney.

[PLS7393]

Trespassing was never discussed with PD.
I was not granted acces by the controlling company, being Orion Security. PD threatened to arrest me on vandelism if I dismantled the temporary chain link fence or pushed it over with the truck to access the property corner.

[dmi]

A land surveyor has the RIGHT to enter and survey when a reasonable effort is made to contact the property owner. So if you want to get tangled up in issues related to vandalism be my guess but that argument is irrelevant to your right of access . Probably not a good not to tell the cops you plan to drive into the fence with your truck. I blame you and not the police becasue you let the issue get out of hand.

[PLS7393]

A land surveyor has the RIGHT to enter and survey when a reasonable effort is made to contact the property owner. So if you want to get tangled up in issues related to vandalism be my guess but that argument is irrelevant to your right of access . Probably not a good not to tell the cops you plan to drive into the fence with your truck. I blame you and not the police becasue you let the issue get out of hand.

Dane,
Have you ever tried talking sense to an officer that doesn't understand what we know?
Your statement about driving into the fence is obviously taken to the extreme measures, and makes me wonder if you know how to use machinery over muscles, lol.

[ekparian]

Kieth,

I had a SJPD officer tell our clients neighbor back in 2015 that it is ok to remove the Property Corner we had just set. I got very upset and posted here on this site about it. i even posted a link to the video. My post was called violation of Penal Code 605. you can still find it on this site if you search for it.

Anyway, i sent a complaint to the Board and Ric got involved. this made it all they way to the City's Police Chief. I was able to talk with a Sergeant from Internal Affairs. I gave him the Novato Police training article and he was supposed to train the officers for situations like these. He talked with the officers who allowed the property corner to be removed in front of them. Im not sure what he said, but they were very helpful after that. they went back to the site, granted me access to the property and told the neighbors not to remove it.

I realize our situations are slightly different, but I still have his name and email address. if you would like, I can send it to you. let me know

~Drexyl

[dmi]

Keith i am not sure why you are insulting me since I took the comment about driving into the fence DIRECTLY FROM YOU COMMENTS.. I show the officer the penal code section and explain what i am doing, if that does not work then I do not waste five seconds more before getting in touch with the watch commander . I have had a watch commander arrive on site and still not be allowed access. After that i went to the City Attorney and the problem was resolved. So it really does depend upon what your goal is. if you really want access and it is your opinion that access is required and handing a piece of paper to a beat cop does not do the trick then you will have to go up the chain. That's life and it does not always go the way we think it should. The job is the same, we get lucky if the monument is on the surface but when we have to dig a ten foot hole do you stop surveying becasue that is just to difficult?

[E_Page]

I've attached a PDF of the CLSA ROE flyer for homeowners and law enforcement.

It's probably a good idea to order the ROE package from the CLSA Store and keep a few flyers in your work truck.

I agree with Dane that you're mentioning moving the fence with the truck in front of the cops was not wise. It's an indication of letting your frustration overrule your good sense in the matter. But then again, Dane, if you are going to say something like "I blame you", then you need to develop a thicker skin for retort. All in all, Keith's retort wasn't all that confrontational.

What I would have suggested for the on-site encounter would have been (assuming that no reasonable attempt to educate the private security guard was going to get you anywhere) to 1) calmly explain to the police on-site what you want to do and why you want to do it; 2) that you are a licensed surveyor and have determined that the temporary fence is encroaching over the property line; 3) show the police the law, either by using the educational documentation produced by CLSA, or using your smart phone to navigate, with them looking over your shoulder, to leginfo and go to the Penal Code Section 602.8.

Police generally won't involve themselves with anything that is not addressed in the codes they are trained to enforce. If it's in the Civil Code, it's a civil matter and they will try not to get involved because there is unnecessary liability to the department and possibly to the officers personally.

If all of that were to fail, politely ask them the name of their watch commander and let them know, again politely and not as a threat, that you will be speaking to their watch commander about surveyor access generally, and about this situation specifically. The street cops may have been just fine with returning to the site to ensure your access after their boss told them it was OK to do so.

Using the previous advice from BPELSG to "pick your battles" as an excuse to throw up your hands and give up on the matter is not a good course of action. Neither is using the excuse of a lack of budget. Your contract should have clauses regarding matters of access or other conditions beyond your control that necessitate extra work for you and allow you, by your contract, to charge for the extra effort to complete the job to the best of your ability. Just make sure that you keep your client informed on the matters beyond your control so that the extra charges do not come as aa surprise when they receive your invoice.

If you have not yet spoken to the Watch Commander, calmly and with documentation supporting what you are trying to convey to him or her, then you have not, IMO, exhausted reasonable efforts to complete your work. If that fails and you decide to set and document offset monuments, then you have made a reasonable effort.

[William Magee]

Evan,
The ROE you unilaterally decided to provide free of charge to the general public at large appears to be copyright protected. The electronic version may be free to members only, but non-members and the public at large have to purchase printed versions being it is a publication CLSA generates funds from.

[E_Page]

Magee,

No form of help goes uncriticized. CLSA charges a rather nominal amount for materials printed on professional looking glossy material and neatly folded. The price charged probably is little more than enough to cover costs. I doubt that they make enough on them to count any generated income.

However, if they are afraid that some will endanger the income generated by the sale of the ROE brochures, they are free to ask me to unattach the PDF or to do it themselves.

These are sold in the CLSA store at $10 per 50 brochures. The cost for someone to print these out for themselves from the PDF would probably be 4 or 5 times that cost. I highly recommend that if after viewing the PDF, a person who believes that having a supply of the brochures would be useful, buy them from CLSA. It's a great deal for a stack of professionally printed and pre-folded, well-written educational brochures.

A question for you: Are you the only one allowed to shoot the messenger?

[William Magee]

Another avenue would be to point out the availability of said copyrighted material and where to locate it, such as the free .pdf format available to current members in the members only portion of CLSA's website.
To do otherwise is a striking disregard and lack of respect for the owner of any such copyrighted material, regardless of what you may feel its monetary value.
As to messenger shooting, ad hominem attacks are a choice and are reflective of the individual choosing to do so.

[E_Page]

I disagree. I believe that it is advertising the availability of the document. It appears that there are some who were not aware of them or may think I was referring to the door hangers that had been developed many years prior. As previously explained, the professionally printed brochures available for purchase are both better quality and significantly more economical than someone printing them off for themselves.

Also as previously explained, if CLSA agrees with you, they can tell me so and I will remove the attachment, or they can remove it themselves.

As one of the people who helped develop the brochure, I can tell you that it was done as a way of providing an educational tool for surveyors to use with law enforcement personnel and landowners. It was not developed with the idea of creating a product for profit. If the motive has changed from education to profit, I'm sure that I will be properly notified.

As for attacks, about the only time that I see your username pop up in response to a post I've made is to make a statement disparaging what I've said or how I've said it. Although I have stated agreement with some of your posts as well as disagreement with others in the past, I don't recall you ever having a good thing to say about any of my posts. In fact, it seems that any time you appear, it's to denigrate another participant or detract from their posts. This is not ad hominem. It is observational.

If you have anything useful to add regarding surveyors educating and/or working with law enforcement agencies and personnel regarding the ROE, please share it.

If you have any further concerns about copyright infringement or other offense you believe I've committed in this thread, please stop littering this thread with them but send them to the CLSA Forum Complaint Department. If your complaint is worthy of actual consideration, I'm sure that I will be notified by the moderator.