Access question

[pls7809]

I have a survey I'm going to start in the next week or so, where there may be some access issues with the neighbors. The city is requesting topo 30 feet beyond the subject parcel PL to show drainage patterns. The subject parcel has an existing house that will be bulldozed and a new house built. I am asking the client to speak with the neighbors first and if that doesn't work I figure I would send a letter with copies of the laws attached. In the letter I would explain the necessity of this survey we need to do to enable the civil engineer to design a drainage system that would protect their property.

After that if no access is allowed - what is the next recommended step? Schedule a survey and the police to come by during that time to help enforce access, or have an attorney write a letter?

Any advice would be appreciated.

Thanks.

Ryan.

[steffan]

Tom,
I'm curious as to your experience which leads to your understanding that the right of entry does not apply to topo work. Can you elaborate?

[Ian Wilson]

California Penal Code §602.8.
(a) Any person who without the written permission of the landowner, the owner's agent, or the person in lawful possession of the land, willfully enters any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or who willfully enters upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands, is guilty of a public offense.
(b) Any person convicted of a violation of subdivision (a) shall be punished as follows:
(1) A first offense is an infraction punishable by a fine of seventy-five dollars ($75).
(2) A second offense on the same land or any contiguous land of the same landowner, without the permission of the landowner, the landowner's agent, or the person in lawful possession of the land, is an infraction punishable by a fine of two hundred fifty dollars ($250).
(3) A third or subsequent offense on the same land or any contiguous land of the same landowner, without the permission of the landowner, the landowner's agent, or the person in lawful possession of the land, is a misdemeanor.
(c) Subdivision (a) shall not apply to any of the following:
(1) Any person engaged in lawful labor union activities which are permitted to be carried out on property by the California Agricultural Labor Relations Act, Part 3.5 (commencing with Section 1140) of Division 2 of the Labor Code, or by the National Labor Relations Act.
(2) Any person on the premises who is engaging in activities protected by the California or United States Constitution.
(3) Any person described in Section 22350 of the Business and Professions Code who is making a lawful service of process.
(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.
(d) For any infraction charged pursuant to this section, the defendant shall have the option to forfeit bail in lieu of making a court appearance. Notwithstanding subdivision (e) of Section 853.6, if the offender elects to forfeit bail pursuant to this subdivision, no further proceedings shall be had in the case.


This one is the one to carry with you and memorize the section of.

Think of it this way: as a police officer, you are dealing with upholding the Penal Code. If a surveyor flaps portions of the civil code in from t of you, what are you to do about it? It’s a civil matter which is not your jurisdiction. On the other hand, if a surveyor shows me or quotes me a section of the Penal Code, not only am I sworn to uphold that, but I have access to a copy in my squad car!

Oh, Tom, are you going to show the topography relative to a boundary line of any sort? The minute you locate a monument or artifact that represents a boundary line, you’re doing a boundary survey. It doesn’t matter what you’re charging your client for, you’ve done boundary work.

Every pipe set for your client's property lines are also set for the neighbor's property lines.

My 2¢ worth…

[pls7809]

In Ian's post, the Penal Code says any person licensed...who is engaged in the practice of land surveying.

That's as general as it gets.

My client is a private property owner and the city is requiring this topo prior to issueing a building permit so they can see how the drainage will be dealt with on the grading plan. I have already completed a boundary survey with a called for monument found at each lot corner.

Thanks

Ryan.

[steffan]

Ryan,
I'm assuming your topo work will be presented to the city as part of the development improvement plans. If that is the case, and if the site design doesn't divert drainage onto, or block drainage from the adjoiner in question, then I would venture that the city would be content with a less precise topographic depiction of the adjoiner. I've sometimes shown adjoiner's lands with flow arrows in the direction of slope, with a percent slope +/-, instead of contours. The city is generally most concerned that the adjoiner isn't adversly affected. Talk to the designer about the site design to see if a clinometer approximation from the property line will suffice. It may be all that is needed and can save the client a couple of $$.

now you've got $.06.

Jeff Steffan, PE, LS.

[pls7809]

It's pretty flat (Costa Mesa) between the properties, so shots will be required to show it.

[bruce hall]

if the access was for only "BOUNDARY EVIDENCE" then the sentence could stop right there without the "and surveys" attached to it. The "and surveys" is there for a reason. The protection of the public is provided when the surveyor or engineer is able to topo the adjoiner so that the proper design and mitigating stuff can be ascertained on my guys land. This is because we now know what is going on over there 25 to 50 feet from the project.

Try this scenario. The city wants me to provide additional topo next door for my subdivision. I tell them, I can't do that cause the neighbor will not allow me access. The city states, "well if you don't give us that information, you can't build your project, cause we have to be sure that the health and saftey of the public is protected."

So the project is stopped, a landowners "right" to develope his property is hindered, and the land lies fallow until the guy next door allows access which might be in 40 YEARS. Give me a break. Surveying is defined in the PLSA and topo is part of surving. Unless I am missing something.

[dmi]

You must ask for permission to survey on the adjoiners property. They cannot refuse to allow you access. My advice is to ask permission first and when they refuse DO NOT ENTER THEIR PROPERTY. Leave the site and then contact the watch commander on duty for you local police department. Explain who you are and what you are doing and when you need to have access to the subject property and direct the officer's attention to the section of the penal code as cited in Ian's post above. The response of the commander will be to send an officer out with you qhen you do your work to keep the peace. This is in noway is to be construed as legal advice, but it comes from my experience in this type of situation.

[pls7809]

Dane,

Absolutely will not enter if not given permission until escorted by police. Thanks for your input.

Robert C,

Offsets won't work since I need vertical data also.

Ryan.

[Scott Tikalsky]

Ian - I agree, carry the penal code version of the ROE with you. My brother-in-law is a former police chief of a Bay Area city. I have asked him about this exact situation. His answer is essentially the same as you have indicated.

Dane - You do not have to ask permission for entry to perform survey purposes, per 8774(a). To paraphrase, it states that you shall notify where practicable. Obviously, in urban areas such as where you work, it will keep you alive. I have spent time working in less desirable areas of Stockton, and made sure I had owner's permission before entering, but here in the north state, most of my work would come to a standstill trying to contact landowners. I am putting the finishing touches on a 60 aerial panel control survey and if I waited for access approval from everyone, this would not get flown until next summer. It really is relative to the particular situation.

My $0.02 worth.

[Ian Easton]

My experience has been to talk to the residents, explain what's going on, tell them it will also benefit them by highlighting any drainage issues before they happen - better to find out now rather than later. People tend to get a bit hostile when you start spouting laws and acts and mentioning police. Usually being cordial and explaining everything works well.

[Ian Wilson]

Ian:

I agree entirely. However, when threated, when hostilities break out or when the police are called knowing the laws and having them availble in your truck can diffuse a situation.

Of course, when the land owner threatens to "...blow your %*#(ing head off..." and stands there with a shotgun, it's time to leave. Diplomacy is no longer an option.

Cheers...

Ian

[dmi]

Okay, I stand corrected the letter of the law is notification and not permission, thanks Scott.