Legality and Ethics of Using Public Right-of-Way for Business Operations

[rmaher]

Dear Colleagues,

I recently observed a significant pop-up restaurant operating on the sidewalk of a busy arterial road near my house. This establishment, featuring awnings and booths that occupy a substantial portion of the sidewalk, is situated in front of a large commercial property with no less than a half-dozen traditional eating establishments.

While recognizing the potential for varied opinions on the matter, my interest here lies in discussing the legal and ethical aspects of such usage, particularly from the perspective of fellow land surveyors. This setup leads me to ponder the application and implications of easements, especially in the context of public right-of-way.

Assuming that this operation has the necessary city approvals, permits, and meets county-level requirements like food inspection and licensing, my questions are as follows:

Is it legally permissible for a city to grant permission for a landless business to operate a restaurant within the public right-of-way, which is primarily designated for street and utility purposes, over another's land?

Considering the adjacent property owner who leases to brick-and-mortar restaurants, is there an issue of overburdening or inappropriate use of the easement? These property owners pay taxes and comply with various regulations, including physical setbacks and parking requirements. Does this situation present an unfair competitive advantage, given the pop-up's prime location and the use of the adjacent property's facilities, such as parking and possibly janitorial services to clean up food and food packaging?

I am curious about the group's perspectives on the legality and fairness of this scenario. Your insights and experiences in similar situations would be invaluable in understanding the broader implications of such use of public spaces for private enterprise.

Fodder for thought:

Legality of Using Public Right-of-Way: "Sturdy v. Jackaway" (1988), the court held that local governments have considerable discretion in regulating the use of streets and sidewalks, as long as the regulations serve a legitimate public purpose and are not arbitrary or discriminatory.

Easements and Public Right-of-Way: Public right-of-way is generally intended for public use, such as streets and sidewalks. The use of this space for private business operations, like a pop-up restaurant, raises questions about the appropriate scope of such use. The principle of easement law in California emphasizes that an easement cannot be used in a manner that is excessively burdensome to the servient estate. This principle is delineated in California Civil Code Section 806, which states that the use of an easement must be reasonable and cannot exceed the reasonably anticipated future use of the easement.

Unfair Competitive Advantage: Concerning the issue of unfair competitive advantage, the legal doctrine of unfair competition under California Business and Professions Code Section 17200 et seq. may provide some insight. This doctrine prohibits businesses from engaging in unfair, unlawful, or fraudulent business acts or practices. If the pop-up restaurant is utilizing public space in a way that gives it an unfair advantage over traditional brick-and-mortar establishments, this could potentially raise issues under this doctrine.

Looking forward to a constructive discussion, not "mean, NIMBY, racist" :)

[jamesh1467]

Senate Bill 946 (SB 946) is I think what you are looking for, or at least is partially the answer here. Attached is the LA county explanation of SB 946. It probably answers most of your questions. I also attached the food truck vendor quick start guide that covers the other aspect of some kind of moveable equipment that isn't covered by SB 946.

CA Legislature on SB 946
https://leginfo.legislature.ca.gov/face ... 20180SB946

My more detailed opinion as follows:

Apparently that bill was in 2018 and California was one of the first to the party, but this really got involved because it was a whole political thing during covid to keep businesses running with outdoor seating for protection against covid and many other state legislatures jumped on the bus. Then they just kept it going for "complete streets" or whatever after covid. The city planners jumped onboard with it because they absolutely love anything pedestrian and transit oriented and started backing the practice because it gave an opportunity to get cars off streets. It is probably way out of hand now that Covid is done, but if they own it in Fee, they basically can do whatever they want with it as long as they go to city council or whatever legislative body to make it official. Its theirs to do with what they want and what their legislative body choses to do with it as long as they dont break any other laws. (I don't know any that they would be breaking, especially with that SB 946 bill)

If its a ROW easement for a specific use type and the underlying land is still owned by a private party in fee, you have a legitimate point and I am guessing that is what you are trying to get at here. But unless the underlying land owners challenges the uses of the individual easements, nothing is probably going to happen. It's probably going to be case by case with the language of each easement and how the attorneys can make that apply to their rights to issue sidewalk permits under SB 946. The language of the easement will matter as every one will be different. (as you mentioned in the other post you posted today, the language is/are never consistent). But that's the honestly the attorney world of stuff based on an individual interpretation of the easement language on a case by case basis. It's not really in the surveyor rehem of the world and anyone who would do that is likely opening themselves up to liability.

In most easement cases, (and fee cases too) my guess would be that the private party that owns the underlying land (or owned before it was given in fee) is the actual restaurant that wants to use the sidewalk anyways. Most development projects had to give the land to the city in front of their establishment in the first place for the road when the developed. So in a lot of cases, this is probably the underlying land owner getting their land back from the government anyways. So its a win-win. If its someone else's land its potentially an issue. Most of the time that is going to happen in a owner tenant relationship. If the business is leasing not owning, then enforcing this would just be giving the property owner more money for basically doing nothing and hurting the leasee trying to make a living. The property owner may have a legitimate legal claim there as property owner that you should be getting more rent or something, but the property owner would just be making a quick buck for no reason when the government is trying to help the business owner out. Its a little heartless in my view. And again, the individual language of the easement would still matter and you would have to dispute that language with the public policy of the sidewalk use permit the business owner would have. Your gripe would be proving a legal claim against the city where the only real person being harmed or impacted by the lawsuit is your tenant. Its not the most ethical thing in the world to do.

Hot dog stand licences (mobile food vendors) have been around for years. You would probably have to essentially have to stop all those businesses to do anything here. It pretty much the same thing and my guess is that they are tailoring their use permits to fall in line with this mobile food vendor policy/case law that is already in place and has already been on the books for years. Or at least that would be the smart thing to do and it would make the legality of it rock solid.

The only time I could really see myself getting involved with this personally or care about it is if this is a new taco truck or something and they posted up right in front of a client's restaurant that was in direct competition with them. That totally devalues their property value and is a problem for property rights. Even then, I would probably tell the client to start finding health and safety violations or find code enforcement issues with their use permit or something along those lines and just make it so tough to be in front of their establishment that no one would do it. It free to use the government (just like those vendors are using the free government ROW), vs my services that are pretty expensive and it will likely achieve the same result. My services are probably the last resort for clients in those situations, not the first.

To be blunt this is a primarily political land planning issue and this is not the state in the union to challenge this type of political issue. There will be many people for "active transportation" "complete streets" and all kinds of other stuff on the other side of this argument. The small business community might even be up and arms. Overall, this new sidewalk thing is probably considered a great policy by a lot of the population in California. All around the country from what I have seen, everyone is doing this and its popular.

I think your real gripe here if you have an issue with this is with the city planners who hate cars nowadays and used this thing with Covid as a method to push their own agenda. If they didn't back this practice, it probably would have gone away after covid. But they want any opportunity to get people out of cars that they can and put them on public transit. But to their credit here, they found a win-win with small business owners. I can think of a lot worst policies they have tried to implement. Again, on the whole, this is probably a good policy.

Also Sturdy v Jackaway.....The only one I can find is a 1866 SCOTUS case and that was pre zoning and land use law of the early 1900s. (didn't find a 1988 version) Without going into the specifics of the case, my guess is that all the fighting for zoning laws in the 1900s superseded that case. Or based on a quick glance of the case, they may have used that case as the basis for all the zoning fights of the 1900's. From memory, those 1900's zoning battles, were vicious and got ugly with the takings clause in the fifth amendment and ultimately SCOTUS ruled (Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), but I know there were other cases too, it was a big deal in the early 1900s) that the constitution didn't expressly forbid all these new zoning and land use laws so it didn't constitute a taking as long as the government showed absolutely any minimal level of public interest in the zoning or use policy and you were still allowed to build something on your land. (this also comes up with FEMA Floodplain stuff and why you always have to give some method to build on the land, even if it's in the floodway and costs them 500 million to do it) My guess is that some offshoot of that reasoning is in the law somewhere about this. Basically, if you don't find something somewhere that expressly forbids this, your not probably not going to be able to stop it if there's a city ordinance associated with it. Even if you find that needle in the haystack that would stop this practice or make it illegitimate and point it out to people, my guess is that the state legislature will have a new law on the books within a year or two to a get this back in operation. Its a popular policy. My advice would be to go with the flow.

[Jim Frame]

I think there's a general trend to welcome anything that generates foot traffic (and associated revenues) in commercial areas, especially after traditional office hours. And since most eateries lease rather than own, the brick-and-mortar lessee may not have much say in the matter from a tort perspective.

On the other hand, I know a guy who owns an Irish pub in Long Beach who has an ongoing problem with a food truck that sets up in front of his store. I happened to witness one of their confrontations, and it was pretty testy. I believe they're pursuing it with the city, but I don't know if there's been any disposition.

In general, I think it's a situation in which whoever feels disadvantaged has to take their complaint through the appropriate channels to find relief. I'm not seeing the need for a state-level solution.