A significant minority (20 percent) of Orinda residents live on streets that receive no public funds for maintenance. However, the property owners on these streets pay the same taxes that fund the repair and maintenance of their neighbor's streets. There are claims that this is appropriate and that the city has no choice in not addressing the inequity. The following facts question these claims and present a solution to the current inequity that exits within the city between those living on publicly maintained streets and those living on privately maintained streets.
The City has three basic classifications of streets:Common streets (Arterials, Collectors, School streets) used by all residents and non-residents Publicly Maintained Residential streets Privately Maintained Residential streets* 20 percent of the homeowners live on a privately maintained street.* Privately maintained streets account for 30 percent of the Residential street miles in Orinda* If Privately Maintained Residential streets were included as publicly maintained streets, Orinda’s road system would increase by 30% from 93 miles to 121 miles...
Privately maintained streets are not drivewaysThere are 204 privately maintained streets in Orinda with an aggregate length of 30 miles for an average length of 758 feet. * One quarter of the streets (46) have over ten homes. * 30 percent of the streets (58) have between six and ten homes. This is less than the 77 publicly maintained streets in Orinda with 6-10 homes. * The remaining 99 streets have between 1 and 5 homes. This is more than the 56 publicly maintained streets in Orinda with the same number of homes but there are a significant number of homes on small streets, both publicly and privately maintained. They should not be ignored by the City.
Paying to repair the publicly maintained Residential streets.
Since 2012 the city has raised $55 million to repair the 64 miles of Residential streets including $5 million in sales tax and $45 million in road bonds. The $45 million in bonds will cost about $65 million to repay over 20 years including interest. The $70 million total will be shared by all of Orinda's 7,000 households; $10,000 per household. The 1,500 households on Privately Maintained streets will each be paying $500 per year, a total of $15 million over 20 years, just to repair the Publicly Maintained Residential streets which they seldom if ever use.
But the cost to repair and maintain the 93 miles of public roads is greater than that. The City needs an addtional $22 million to complete its ten year Road and Drains Repair Plan plus $2,5 million per year to maintain the 64 miles of publicly maintained residential streets. Added to other taxes collected for road maintenance, the total cost to maintain Orinda's 93 miles of public streets will be $8.8 million per year.
Does the city does have the money to include 30 more miles in its road maintenance program?
Not at this tme. In fact, the city does not have the money to include the 64 miles of Publicly Maintained Residential streets it has spent $51 million to repair in its road maintenance program. Without additional funds for maintenance, these upgraded roads will again start to degrade.
The latest version of the City's Road Plan estimate that after the city completed the repairs to the Residential streets, bringing their minimum PCI (Pavement Condition Index) up to 50 (no “Poor” roads in Orinda), the City would need to spend $3.5 million per year to maintain the system. The only funds currently available for this come from the State’s gas tax and the County’s Measure J sales tax. By 2019 it is projected that these revenues will increase to $1 million. That is still $2.5 million short of the estimated expenses to adequately maintain the current 93 mile road system. A new (tax) revenue source would be needed to supply this $2.5 millon per year.
Before the voters agreed to an extra half cent sales tax and the two bond measures for road repair, the city policy was that all existing funds would be spent on the maintenance of Orinda’s Common streets. That policy still stands. Therefore, without new taxes to fund the $2.5 shortfall in maintenance expenses for the existing 93 miles of publicly maintained roads, all funds will go to maintain the Common streets and the Residential streets which we have spent $51 million to repair, will revert back to being not maintained. $2.5 million per year of new taxes will have to be voted in to prevent this waste of repair funds.
What will it cost to increase the tax to cover roads that are currently privately maintained?
The $2.5 million needed annually to maintain the 64 miles of Publicly Maintained Residential streets equates to $39,000 per mile. If that was spent on the 30 miles of Privately Maintained streets, this would add $1.2 million to the annual cost of maintaining the entire road network.
However, the revenue the city receives from the state and county for road maintenance would likely increase if the city took responsibility for an additional 30 miles of streets. This could be an additional $300,000 per year which the city is not currently collecting for the benefit of the private streets. This is money the private street residents are paying as taxes but cannot collect on their own behalf; only the city can do it. Netting this out reduces the cost to $900,000. Ten percent of what Orinda spends on its public roads.
However, it is possible that the $39,000 per mile overstates the cost for maintaining lightly used residential streets. Instead of $1.2 million per year, it could cost as little as $600,000 to maintain the additional 30 miles of Residential streets. Reducing this cost by the additional revenue from the state and county, the net increase might only be $300,000. This is only three percent of what it costs to maintain the City's public roads. Spread across 7,000 households, as the other road costs are, equates to less than $50 per household annually or a little over ten cents a day.
This is not an unreasonable expense consideering that their neitghbors on private streets have so far commted to pay $500 per year to repair the publicly maintained residential streets and will soon be asked to commit to an additional $450 per year. Such an action will bring the city back together with respect to maintaining a quality road system.
Can a privately maintained street currently obtain public funding?
In 1990 the city passed a resolution (Resolution 56-90) detailing the criteria for a private street to become a public street. One section, Paragraph C, states that "there shall be a demonstrated need for the incorporation of the road into the City's road system for purposes of traffic circulation." It then gives three examples which are all examples of a street providing access from one public street to another. In other words, a private street would have to be a "through" street. To the best our knowledge, only one out of Orinda's 203 private streets, Alta Vista, meets that criteria. The current City policy therefore precludes any private street from either being maintained with publc funds or ever becoming a public street.
However it should be noted that, (1) There are hundreds of publicly maintained cul-de-sacs which do also not meet that criteria (179 public cul-de-sacs and "loops") and (2) there are also three privately owned streets which do not meet that criteria which are actually maintained with public funds (Ridge Gate, Village Gate and Watchwood). It would appear that not only does the current policy have artificial criteria designed to prevent any more cul-de-sacs from being publicly maintained, the city appears to be maintaining a select few private streets for reasons unknown.
The city's 27 year old policy obviously needs to be reviewed and revised if not completely rewritten.
Can public funds be used to pay for maintenance of privately owned roads?
The short answer is YES*
The longer answer is that this is an exception to the general rule that public funds cannot be given to any private individual or association. The general rule is known as the “Gift of Public Funds” Doctrine enshrined in the California Constitution (Article XVI, section 6) essentially prohibiting aid, gifts, loan payoffs or other taxpayer assistance to any private individual, association or corporation. The legislature later codified the concept in Government Code section 8314 (which specifically added language pertinent to campaign funds).
Essentially, public money cannot be spent on private individuals or entities unless the direct and primary function of the expenditure is for a “public purpose”. If that is determined to be true, then an incidental private benefit does not run afoul of the law. There has to be “legal consideration”, which means that the value of the expenditure to the public has to be commensurate with the expense.
Clearly a public purpose would be served by the proper maintenance of over a fifth of the streets in Orinda. The use of these 203 streets, mostly cul-de-sacs, by the residents of Orinda who live on these streets and their service providers (police, ambulance, fire, postal service, trash collection, and other utilities) does not differ from the use of public streets which include 180 cul-de-sacs and “loops”.