AGENDA STAFF REPORT

Agenda Item AGENDA STAFF REPORT ASR Control 10-001393
MEETING DATE:	03/15/11
legal entity taking action:	Board of Supervisors
board of supervisors district(s):	3, 5
SUBMITTING Agency/Department:	OC Public Works (Approved)
Department contact person(s):	Ignacio G. Ochoa (714) 667-3213
	Ted Rigoni (714) 834-5872

Subject: Trabuco Creek Road Acceptance and Improvements

ceo Concur	County Counsel Review		Clerk of the Board
Concur	Approved Resolution to Form		Consent Calendar
			3 Votes Board Majority

Budgeted: Yes		Current Year Cost: N/A		Annual Cost: N/A

Staffing Impact: No		# of Positions:		Sole Source: N/A
Current Fiscal Year Revenue: N/A
Funding Source: Road Fund 115: 100%

Prior Board Action: June 22, 2010

RECOMMENDED ACTION(S):

1.	Adopt Mitigated Negative Declaration No. IP 10-242 and make the following findings: a) Mitigated Negative Declaration No. IP 10-242 reflects the independent judgment of the Board of Supervisors of the County of Orange. b) Having reviewed and considered Mitigated Negative Declaration No. IP 10-242, including any and all comments received by the County on Mitigated Negative Declaration No. IP 10-242 and the County's responses to comments, there is no substantial evidence in the entire record to support a fair argument that the project, with the implementation of mitigation measures included in the Mitigated Negative Declaration will have significant effect on the environment. c) The proposed Mitigation Monitoring and Reporting Program No. IP 10-242 is found adequate and is adopted by the County of Orange. The mitigation measures are enforceable and have either been adopted as conditions, incorporated as part of project design, or included in the procedures of project implementation.
2.	Pursuant to the California Streets & Highways Code, adopt Resolution (Attachment B), confirming acceptance of the common law dedication of Trabuco Creek Road as a public road, finding that Trabuco Creek Road, as legally described on Exhibit A to the Resolution attached hereto as Attachment B, is necessary to the public convenience, finding that Section 906 of the Streets & Highways Code does not apply to acceptance because the road was not built by the County, and accepting the public road right-of-way as described in Exhibit A to the Resolution attached hereto as Attachment B into the Orange County Road System and deliver to OC Public Works Real Estate Services for processing and recordation.
3.	Approve an asset transfer from OC Parks to County Road System of real property lying within portions of Trabuco Creek Road currently owned by the County of Orange, as legally described on pages 1 and 55-60 of Exhibit A to the Resolution attached hereto as Attachment B.
4.	Direct the Auditor-Controller to make the required journal entries to the General Ledger Fixed Assets account to reflect the inclusion of this right-of-way pursuant to Section 2150 of the California Streets & Highways Code and Revenue & Taxation Code Section 7104 as a maintained County road within the Road Fund.
5.	Approve the proposed Trabuco Creek Road Resurfacing and Improvement Project ("Project") as described in the Agenda Staff Report and described and analyzed in Mitigated Negative Declaration No. IP 10-242 and direct the Director of OC Public Works or designee to return to your Board for approval of the final Project Plans and Special Provisions; Notice to Contractors; form of Proposal and form of Construction Agreement for the Project, and authorization for the Clerk of the Board to advertise the Project for bids.

SUMMARY:

Adopting Mitigated Negative Declaration No. IP 10-242 and making CEQA findings; approving the internal asset transfer from OC Parks to the County Road System of real property lying within portions of Trabuco Creek Road currently owned by the County of Orange; adopting Resolution confirming acceptance of the common law dedication of Trabuco Creek Road as a public road and accepting the public road right-of-way as described into the Orange County Road System; and approving the Trabuco Creek Road Resurfacing and Improvement Project will support maintenance of the road and improved use and access by emergency services, utility personnel, and the public.

BACKGROUND INFORMATION:

The existing segment of Trabuco Creek Road from Trabuco Canyon Road to the entrance of the Cleveland National Forest (CNF) is a 2.8 mile rough-graded dirt road that has been used for many decades by emergency vehicles and the public to obtain access to a rural area of Orange County to the Cleveland National Forest.

Confirmation of Trabuco Creek Road as A Public Road by Common Law Dedication

Trabuco Creek Road was Established Early in the Twentieth Century and Has Been Continuously and Openly Used by the Public For Many Decades for Residential, Recreational, Commercial, and Public Utility and Emergency Services Purposes

James Sleeper is a well known Orange County historian who began his career in the Forest Service and served as staff historian for the Irvine Company and for the City of Rancho Santa Margarita. Mr. Sleeper and the U.S. Forest Service, among other sources, have provided a wealth of information describing the history of the Road and the decades of continuous public usage that have occurred since the Road was first established. The first use of this route through Trabuco Canyon and Holy Jim Canyon can be traced back to the last part of the nineteenth century. The Road was first improved as a gravel or dirt pathway or road sometime between 1900 and 1910 to service the new Borden Tin Mine. Equipment and lumber were hauled up the Road by wagon to the mill, as well as mill assembly pieces. See, James Newland, Historian, Historic Evaluation of Santa Ana Tin Mine (CA-ORA-1013H) Cleveland National Forest, California, 6 (1993). Miners' cottages were also erected. Id.

In the early 1920's, more than 100 cabins were built in the CNF. Through the decades, cabin owners have occupied (and continue to occupy) the land under 20-year permits from the Forest Service. Today, approximately 49 cabins remain in use by members of the public who gain access to their homes by using the Road, just as previous owners did during the prior 80 or 90 years. Those cabins are apparently passed down from generation to generation. The canyon's reputation as a popular recreational gateway appears to be one of the reasons that it became "an ideal candidate for a summer home tract". Dana E. Supernowicz, Historical Evaluation of the Trabuco, Holy Jim, San Juan, and Hot Springs Summer Home Tracts on the Trabuco Ranger District, Cleveland National Forest, Orange County, California, 28 (1994).

Mr. Jim Sleeper, who bought a "Holy Jim Cabin" in 1949 and was a presence in the canyon for many years, notes that the 1920's were the "heyday" of the Forest Service and that the Civilian Conservation Corp maintained large camps in the canyon consisting of at least 500 men. The Forest Service received free labor and in return the men received free meals and shelter. They used the Road for access to the camps. The Forest Service maintained campground and park facilities on the Road until the 1950's. In the 1920's through the 1940's, the Road was frequented by many members of the public.

Historical documents also reveal that the U.S. Geological Service ("USGS") operated two stream gauges on Trabuco Creek, one from 1932 through 1981 and the second from 1973 through 2008, both near its mouth. The USGS refers to this creek as "Arroyo Trabuco". Access for those operations could only have been gained through use of the Road. See http://en.wikipedia.org/wiki/Trabuco Creek#Geology

A well-known property owner along the Road, the late Leonard Schwendeman, observed in an Orange County Register article entitled "County Clearing out Immigrant Shantytown" of September 30, 1999 that abutting property to the Road has been used "continuously" by immigrants since 1934 for shanty settlements. As recently as the 1990s, two immigrant settlements remained. One, known as "Porterville", apparently existed on the Porter property, and another, "El Rancho", was located on the Mitchell/Parker property. It is reported that the immigrant residents of those settlements paid the landowners small monthly fees for occupancy of the land. Although both settlements were shut down by the late 1990's, the occupants of these shantytowns, albeit not in conformity with zoning and land use regulations, used the Road for access to their homes during the previous six decades.

As far back as the mid-twentieth century, from the 1950's through the present, the Holy Jim and Trabuco Canyon trails have been widely used by hikers and bikers. Access to those trails has always been obtained by driving or walking up the Road. The Los Angeles Times ran an article entitled "Hikers' Paradise" in its December 5, 1954 issue, extolling the virtues of Orange County hiking. The article featured an inset map depicting the road in its present location. And an April 29, 1954 Los Angeles Times article entitled "Fish 'N' Game" speaks of use of a road in this location to gain access to fishing areas.

Staff has also found substantial information about other longstanding public uses of the Road by fire protection organizations, social groups, and business interests. In 1961, Trabuco Canyon and Holy Jim Canyon property owners established the "Holy Jim Volunteer Fire Department" ("HJVFD"). The Wikipedia entry for the HJVFD states that "[t]he department also maintains the road leading into the canyon and organizes work parties to repair potholes and other damage to the unimproved dirt road". In more recent decades, the Road was used by the County of Orange and then the Orange County Fire Authority to provide fire suppression services in the area. Similarly, utilities and other service companies (including one or more septic tank service companies) have used the Road for many years to maintain utility lines and provide services to customers.

An organization know as the Trabuco Flyers (or its predecessor) has been leasing a portion of the property now owned by Ms. Catherine McKittrick (formerly the late Leonard Schwendeman's property) since the 1980's. Members pay dues and/or fees to the organization for the privilege of flying their model airplanes on the site. The Flyers organization maintains paved runways and structures for its operation. Similarly, a portion of the McKittrick property is also leased to a business known as Aegis Laboratories, which conducts business operations on the site. The members of the Trabuco Flyers and the owners and/or employees of Aegis use the Road regularly for access to their operations.

Trabuco Creek Road Is a Long-Established Public Right-of-Way

Under the Doctrine of Common Law Dedication

In light of the long history of unimpeded public usage of the Road, according to applicable California statutes and case law, the Road long ago became a public right-of-way. In California, the public may acquire a permanent right to use a road that runs through privately owned properties by operation of the doctrine of common law dedication (also referred to as an "implied dedication"). In common law dedication, the fact of longstanding public usage without interruption or interference by the property owners who own the underlying property implies as a matter of law that the owners have dedicated the road to the public use. Such implied dedication is found to have occurred as a matter of law by facts showing that the public has been allowed to engage in open and continuous use of a road for a period of five years, while believing that they had the right to do so. See, County of Los Angeles v. Berk, 26 Cal.3d 201, 214 (1980). The history of the Road outlined above establishes that the Road was dedicated for public use many years ago and that such public usage has continued continuously and openly for much, much longer than the required five years.

Furthermore, the public's ongoing and continuous usage of the Road for a wide variety of purposes over many decades has established the necessary "acceptance" by the public of the implied offer of dedication. Acceptance of the implied offer of dedication is deemed to occur when public use of the property has occurred for such a length of time as will evidence an intention to accept the offer of dedication. Biagini V. Beckham, 163 Cal. App. 4th 1000, 1009 (2008). There is no established or defined length of time of such public use that is required in order to constitute an implied acceptance. But in the Biagini case, the Court noted that all the law requires to establish as implied acceptance is "a use .... for such a length of time as will evidence an intention to accept the dedication", and "cannot be stated in terms of years or even months". Id.at 1011.

Consequently, based on the history of the Road, no doubt exists that the public's continuous and uninterrupted use of the Road over the last eight or nine decades is more than sufficient to establish that the Road is, and for many years has been, a public right-of-way under the doctrine of common law dedication. While the status of the Road as a public right-of-way has long been established, it is desirable to create a public record confirming that fact. Accordingly, Staff recommends that your Board confirm the acceptance of the implied dedication through adoption of the proposed Resolution attached hereto as Attachment B.

Easements from Trabuco Canyon Water District and U.S. Forest Service

The doctrine of common law dedication does not operate to allow acquisition of public rights over properties owned by public entities. As a result, County staff has worked with staff of the Trabuco Canyon Water District ("TCWD") and of the U.S. Forest Service (i.e. the United States of America, acting by and through the Forest Service, Department of Agriculture) ("U.S. Forest Service") to obtain easement deeds executed by those public entities as to the portions of the Road that pass over their properties. The deed from TCWD has previously been executed and accepted by OC Public Works through delegated authority. The deed from the U.S. Forest Service is being processed and it is anticipated that it will be received in the near future. Therefore, your Board is requested to declare that the adopted Resolution shall become effective upon recordation of the Resolution. This recordation will take place after acceptance of the easement from the U.S. Forest Service. Those transfers, combined with the proposed confirmation by your Board of the Road as a public road under the doctrine of common law dedication, will allow the County to accept the Road into the Orange County Road System. In turn, this will allow the County to proceed with the Project through the use of Road Funds.

Internal Asset Transfer from OC Parks to County Road System

OC Road completed the design for the Project and in order to implement portions of it, real estate assets (Parcel 101 and 115, as described on pages 1 and 55-60 of Exhibit A to the Resolution attached hereto as Attachment B) currently under the operation of OC Parks must be transferred to the County Road System. These Parcels contain approximately 40,477.48 square feet of land and will be transferred into the Orange County Road System upon adoption and recordation of the attached resolution. The OC Parks Commission reviewed the subject asset transfer at its meeting on January 6, 2011, and recommends approval of the asset transfer.

Approval and acceptance of the Trabuco Creek Road into the Orange County Road System will facilitate the County assuming responsibility to maintain the Road and provide patrolling by the California Highway Patrol and Sheriff's Department. Project staff and County Counsel have discussed the Project with all owners of the properties through which the Road runs and all have expressed support for (or in one instance, an intent not to oppose) the Project.

Topographical limitations including its proximity to an adjacent creek and mountain as well as environmental regulations including the potential impact to biological resources along the Road, prevent this Road from complying with typical County street and highway standards for street grades; horizontal and vertical alignments; horizontal clearance; road width; drainage; sight distance; and shoulder width. It is functionally and physically infeasible to improve the Road to current County street and highway standards.

Based on the infeasibility of full reconstruction, OC Public Works is recommending approval of the Trabuco Creek Road Resurfacing and Improvement Project to maintain its surface and improve an existing narrow segment of the Road width in accordance with ensuring adequate access by emergency vehicles and the public, which is consistent with the County's approach to other roads and highways constructed prior to the current County standards.

The Project will be limited to the existing Road width, which is typically 20 feet wide with the exception of the existing narrow segment of the road, approximately 400 foot long, located along the upstream end of the creek. Erosion from the creek has reduced the narrow segment of the Road to an approximate 11 foot width, this section will be restored to a 16 foot width, which is the minimum width for fire truck access. The Road segment will be widened using vegetated gabion structures that include wire baskets lined with geotextile fabric; filled with rock and soil; and then seeded with native vegetation. Existing concrete dip crossing located where the Road crosses the creek will be reconstructed to provide a new concrete dip crossing at a natural drainage course that crosses the Road.

The existing dirt road will be smoothed out and an all-weather surface will be applied that is capable of supporting loads from fire trucks. The roadway structural section will consist of four inches of stabilized decomposed granite over six inches of aggregate base, as recommended by the Orange County Fire Authority. An organic stabilizer will be used to bind the decomposed granite particles together to lessen erosion, dust, and mud. Supplemental roadway stabilization comprised of a subsurface load supporting mesh will be provided at the ingress/egress to four private properties to prevent damage to the Road by existing heavy vehicle usage.

This Project will be funded by gas tax revenue and is programmed for FY 2011-2012 per the current County Seven-Year Transportation Capital Improvement Program (CIP) approved by your Board on June 22, 2010.

Compliance with CEQA: Mitigated Negative Declaration No. IP 10-242 was prepared and posted for public review October 29, 2010 through November 29, 2010. It reflects the independent judgement of the County of Orange, as lead agency and satisfies the requirements of CEQA. There is no substantial evidence in the entire record to support a fair argument that the project, with the implementation of mitigation measures included in the Mitigated Negative Declaration, will have a significant effect on the environment. The mitigation measures are enforceable and have either been adopted as conditions, incorporated as part of project design, or included in the procedures of project implementation. The proposed Mitigation Monitoring and Reporting Program No. IP 10-242 is adequate and is adopted by the County of Orange.

A copy of the Mitigated Negative Declaration No. IP 10-242 is on file with the Clerk of the Board.

Hazardous Materials Assessment: The proposed action does not require assessment under County of Orange Hazardous Materials Assessments Policy and Procedure adopted by your Board on October 20, 1992.

FINANCIAL IMPACT:

N/A

STAFFING IMPACT:

N/A

REVIEWING AGENCIES:

County Counsel

EXHIBIT(S):

Exhibit A - Location Map

ATTACHMENT(S):

Attachment A - Exhibit A - Legal & Map
Attachment B - Resolution