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 (1,500 homes) live on a privately maintained street.* 90 percent of those streets (1,400 homes) are cul-de-sacs which are excluded from ever becoming public by existing City Policy.* 178 public streets (with 2,000 homes on them) are also cul-de-sacs.* The residents of Orinda have recently approved $55 million to repair the public residential streets. Over half of this money is going to repair streets which are cul-de-sacs. None of these funds are being used to finance repairs on the equivalent private streets, however everyone is paying the taxes to repay these loans.
Privately Maintained Streets are Not DrivewaysThere are 204 privately maintained streets in Orinda with an aggregate length of 30 miles and 1,500 households on those streets. * One quarter of the streets (47) have over ten homes including over half (780) of the homes. * 30 percent of the streets (58 with 425 home) have between six and ten homes. This is less than the 77 publicly maintained streets (with 600 homes) in Orinda with 6-10 homes. * The remaining 99 streets have between 1 and 5 homes (300 homes total). This is a small fraction of Orinda's total home but comaparable to the 200 homes on publicly maintained streets which have 1-5 homes
Paying to Repair the Publicly Maintained Residential Streets.
Since 2012 the city has raised $50 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.
In addition, the latest Road and Drains Repair Plan reports that after the repairs are complete in 2019, the City will need to raise $2.5 million per year to maintain the 64 miles of publicly maintained residential streets. This increase the cost per household to $850 per year to repair and maintain Orinda's publicly maintained residential streets.
The 1,500 households on Privately Maintained roads will be paying $1.3 million per year to support the publicly maintained residential streets.
Who uses the Publicly Maintained Residential Streets?
The claim in made that everyone uses Orinda's publicly maintained residential streets and thus we are all responsible for the cost to repair and maintain them. The first half of this statement is not true; we do not all use these streets. The second half is true if we believe we should all pitch in for the common good.
178 of Orinda's 245 publicly maintained residential streets are cul-de-sacs or loops, used exclusively by the residents, their service providers and guests. These are home to 2,000 households, half of the households living on publicly maintained residential streets.
The other 67 publicly maintained residential streets are "through" streets, providing access to public and private streets. How many private streets?
Half of Orinda's private streets access the public road system directly into an arterial or collector. The only time the residents of these streets use the public residential streets is to visit a friend. The other half of private street residents do use the publicly maintained residential through streets to access their homes. So half of the private street residents use half of the publicly maintained streets to access their homes.
If these were toll roads, who would pay the cost of the publicly maintained residential streets. Half of the cost, for the cul-de-sacs and loop streets would be allocated to the local residents. The other half, for the residential through streets, would be allocated to the 4,000 homes on all publicly maintained residential streets plus the 750 homes (half) on privately maintained streets which use the publicly maintained residential streets for access. These 750 homes represent 16 percent of the 4,750 homes that use the publicly maintained residential streets but since they only use half of those streets (the through streets), they should only pay 16 percent of that half or 8 percent of the total. Yet the 1,500 private street residents are paying the same as the 5,500 public street residents, 21 percent of the total. Three times what their usage implies they should pay.
However, if the City maintains all of the City's streets, then we can accept that we all share in the costs equally even though some may live on Northwood, a few feet from downtown Orinda, while others live at the top of Tappan Lane or Dalewood, 3 miles from downtown.
Does the City 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 $50 million to repair. Without additional funds for maintenance, these upgraded roads will again start to degrade.
The latest version of the City's Road Plan estimates that after the city completes 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 (the $1 million) would be spent on the maintenance of Orinda’s Common, not Residential, 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 $50 million to repair, will revert back to being not maintained. $2.5 million per year of new taxes will have to be voted for to prevent this waste of repair funds.
What Will it Cost to Increase the Tax to Include 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, 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 ($20,000 per mile is what some HOA's, which have well maintained roads, budget).
In addition, it is possible that this cost could be further reduced by additional State and / or County funding if Orinda takes the responsibility of maintaining all 123 miles of its road system and not just the 93 miles it currently pays to maintain.
Assuming $500,000 per year, spread across 7,000 households, equates to an additional $70 per year per household (20 cents per day). Considering that the private street housholds are, or will be asked to, pay $850 per year each to repair and maintain the 64 miles of publicly maintained residential streets, it is not unreasonable to expect that the majority would agree to this additional burden.
Can a Private 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. Only nine out of Orinda's 204 private streets meet that criteria. The current City policy therefore precludes over 90 percent of private street from either being maintained with publc funds or ever becoming a public street.
However, it has been noted that, (1) There are 178 of publicly maintained cul-de-sacs and "loop" streets which do also not meet that criteria 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 204 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 178 cul-de-sacs and “loops”.
What Options Does the City Have to Address the Issue?
There are probably many variants but some include:
1) Allowing any private street that wishes to become a public road be declared as such. This would probably require that title to the street right of way be given to the City which could be simple or difficult. To the extent that it was difficult (significant surveying and property line revisions) the City would probably ask the land owners to assume those costs.
2) The City takes over maintenance responsibilties while allowing the street to retain private ownership. The residents of the street would have to agree to grant a public easement to the street, at least for the life of any improvements made by the City.
3) The City provides a maintenance grant to a private street in return for the street granting a public easement. The grant could only be used for agreed upon maintenance costs.