The Culvert of Brush Road

The Background

The culvert at the junction of the private Brush Road and California State Highway 17 failed during the winter of 2005. The culvert consists of a vertical structure rising from a concrete box (see picture at the top right of this web page) which collects water that has drained down the mountain and then directs the water out of the side of the concrete box into a horizontal, 100 foot long pipe which runs underneath Brush Road and drains the the water on the downhill side, towards the state highway (see picture). The concrete box holding the vertical part of the culvert is located on private land that is enclosed in the small yellow box on the Culvert Aerial Views page of this web site. The large yellow box shows the property borders of the parcel in which the culvert is located.

The failure occurred where the horizontal pipe used to emerge from the side of the concrete box. As can be seen in the picture, the pipe no longer connects to the box, and instead has started to slide underneath the road. As a result, in a rainstorm, water pools up & flows through and around the horizontal pipe and is eroding underneath Brush Road, and eventually will lead to the collapse of the road.

The State of California has been maintaining this culvert since 1939, without an easement to do so.

The various landowners of the parcel (including the current) have allowed this maintenance to occur, they have apparently refrained from performing any maintenance themselves, while remaining liable for any damage the faliure to maintain may cause to the road, or that the resulting hole may present to unsuspecting motorists driving on Brush Road.

After consultation with legal representation of the State of California, council to the Brush Road corporation, council for the current land owner, and a search of the County of Santa Clara property records, the parties have entered into the Agreement and Release below which governs this land going forward, and to allow repairs on the culvert to proceed.

Timeline of Communications

1941

02/11/1941 Steinbeck - Foster easement (1941) (photcopy)

02/11/1941 Steinbeck - Foster easement (1941) (retyped). John Ernst Steinbeck apparently paid to realign the road in the late 1930s as Highway 17 was being created. Later he executed this agreement with Foster, across whose lands the road runs, making it clear that Steinbeck and his assignees have an ingress and egress right, including the right to repair.

1989

5:04 pm, 10/17/1989 Magnitude 7.0 earthquake strikes at Loma Preita, 9 miles south of the Culvert, on the San Andreas Fault, which runs along State Highway 17, The fault is located 700 feet from the culvert. State Highway 17 is closed for one month due to a landslide. Most homes on Brush Road suffer minor to major damage; Two homes are destroyed. All wells are severed by the earth movement. The road suffers serious surface damage, and many of the existing culverts are compromised.

1991
10/21/1991 Brush Road hires DSS Construction to repave the road, and remove and replace all of the existing culverts. The plan of work shows all of the culverts which Brush Road has today existed in 1991, had been damaged in the 1989 earthquake, and were replaced in 1991. This clearly shows these culverts have been in place for more than 25 years. Sal alledges that the culverts designated C3 and C4 on the last page are new development created in 2004; in truth, these culverts have been in place for decades.

1993

12/06/1993 Brush & Old Well Mutual Water Company is established to bring San Jose Water city water to the road, (replacing the many wells which were destroyed by the earthquake) and the BOWMWC builds a water main down the road. Their AsBuilt blueprints document these same culverts C3 and C4, which are circled in the as built diagram in the link; at this time Danais owned what is today owned by Sal. The original AsBuilt is also available.

2005
Rainfall 110% of normal (June 1,2004 - May 30, 2005)

03/01/2005 Letter from the State to Brush Road first informing us of the failure of the Culvert.

05/01/2005 Caltrans draws up a plan that suggests inserting a platic pipe inside the failed 25 inch horizontal pipe, and reattaching this to the vertical upright. This plan would need no permits, as it would restore the original structure. Brush engages a contractor to send a camera down the horizontal pipe to access its integrity. We quickly discover that the pipe is rotted out almost immediately, and partially collapsed, such that the water runs straight out the bottom and has carved a big cave under the pipe. As such we have no confidence that we will be able to insert a large diameter pipe inside the 25 inch pipe.

08/25/2005 Brush Road Annual meeting minutes. Discusses the Culvert, and accepts report from a member (Michael Hunt) who has been investigating the situation. Brush elects a new Board of Directors. Plan of action is laid out to raise money, learn our options and get a fix done as soon as possible.

08/31/2005 Brush Road hires Mark Strombotne to advise the Board on dealing with the State on the Culvert matter.

09/14/2005 Brush Road engages California Asphalt & Paving to resurface parts of Brush Road, as well as to rebuild the intake to culverts C1, C3 and C8

09/16/2005 Brush sends letter to State demanding that they fix the Culvert structure which (we thought at the time) they had built on the land of one of our members.

10/07/2005 Brush sends letter to State offering the Brush Road Corporation would contribute $15,000 towards the repair, if the State performed the repair promptly, and recorded an agreement affirming their further obligation to repair and maintain the structure, as they had been doing for 70 years.

10/17/2005 California Asphalt & Paving completes its work repaving and redoing the culvert intakes.

10/20/2005 State counters with an offer to contribute $20,000 to Brush if it will perform the repair, and recorded an agreement having Brush take the future obligation to repair and maintain the structure.

10/20/2005 Brush counters with a offer to pay for the complete fix if the State continues to maintain the structure.

11/01/2005 State responds, saying it has no interest or ability to maintain a structure which is not on their land.

11/23/2005 Letter summarizing the above communications, and noting that rains have commenced making performing any repairs that year difficult, and increases the offer to pay $25k towards a repair, if the State continues to perform maintenance

12/13/2005 A series of emails and phone calls between Brush and the State; Brush communicating that they are interested in the settlement proposal, and given the time of year wish to examine doing a temporary fix right away, followed by a more permanent fix after the rains are over. The State that Brush hire an engineer to study the water flow, and suggest a temporary & permanent repair; Brush shall present this to the State for its approval, and then when obtained put the proposal out to bid

2006
Rainfall 90% of normal (June 1,2005 - May 30, 2006)

1/16/2006 - 4/16/2006 Contractors and engineers refuse to bid on the job, or even postulate a possible fix, as conditions at the site are too dangerouus even to approach the edge of the ravine. Brush Road installs reflective Caution tape on sawhorses to warn away drivers from the hazard.
6/7/2006 Brush Road engages a number of contractors (Messa & Sons, Top Down, Porter Construction) to look at the job, and offer ideas. We then take the ideas to an engineer to write up as a plan. This engineer never gets around to it, and so we fire him and...

10/3/2006 Brush Road hires Roy Nelson to perform an Engineering Study of the complete flow that could be generated by the mountain, and draw up the consensus design of a structure that can handle this flow.

12/18/2006 Minutes of the Winter 2006 Members meeting - State verbally agreed to pay for some repair work, but Brush must get engineering plans drawn up, and obtain bids from two contractors for the approval of the State. The State suggests some of its favored contractors; we contact them and none of them are interested in a job this small. We have obtained engineering plans, and are seeking bids. Members authorize Brush to continue down this path; and also to urge all of our guests to take notice of the hazard posed by the culvert.

2007
Rainfall 54% of normal (June 1,2006 - May 30, 2007)

1/18/2007 We get one bid, from Messa, for $102k. We need a second bid.

2/14/2007 We get a second bid, from UpGrade Construction, for $123,480k.

02/20/2007 Brush meets with its engineer to discuss the bids. Consensus is that because we have not done a full engineering study (cost estimate is about $15k to do this), the contractors do not know how much fill will be needed, so are inflating their estimates to cover themselves. We decided to present the bids we have to CalTrans and have an open dicussion on what to do, how much of the cost will they pay, what do they suggest we do.

07/10/2007 Letter from Brush to the State with the bids we have been able to obtain, and seeking their approval and funding.

7/11/2007 K. Kim tells us she has moved on to other responsibilies, and passes us on to someone else. We also contact our State Senator (Able Maldanado), asking him to help call attention to this matter.

8/20/2007 CalTrans assigns Frank Valentini as the new attorney, and we bring him up to speed on the matter.

08/27/2007 Letter from the State outlining that while they have maintained the culvert for 70 years, they will cease doing this, and checking to see if the offer of $20,000 to help us get the culvert fixed is still valid.

09/2/2007 Brush Board brings Sal Giovando up to speed on the matter, and asking for his help. At this time we all still believe that the State built this structure on land that was later purchased by Sal; and that the State was obligated to continue to maintain the structure.

09/5/2007 Brush calls Sal to discuss the letter. Sal says he does not care about this culvert, and for Brush to do what ever we think is right to fix it ourselves. Sal states that he does not know any engineers or politicians, that he is a real estate landlord (http://www.vrent.com) , and he can not spend any time helping us.

09/09/2007 CalTrans tells us they will not renew their offer to pay $20k to help fix the culvert. They take the position it is not their problem.

09/10/2007 - 09/24/2007 Brush road does extensive research to understand options. Again, Highway 17 was built in 1937, during great depression, and there was a spirit of "build it now, get the rights later" at that time. We compared the style of construction of the culvert with similar culverts on Caltrans land, and found them to be identical. We learned that Caltrans did acquire the land under part of Brush Road in 1940, but not the land under this culvert. We obtained Title Reports. We searched easement agreements. We documented our observations of Caltrans maintaining the culvert over the past 50 years. We prepared a litigation plan for if we needed to sue Caltrans to compell them to fix their culvert.

09/24/2007 Brush communicates to Caltrans that we feel that "They built it, they broke it, and they must fix it". At minimum, even if they can show that they did not build it, they have already admitted that they have been exclusively maintaining it for the past 70 years, and so it is clear that it was them that broke it, so they must fix it. We make it clear that we feel the liability for a catastrophic failure is theirs, and so if such a failure blocks Highway 17, it is their fault.

10/10/2007 Caltrans digs out the lower culvert, which is on their land, and which accepts the water from the failed culvert, and builds a large berm to protect Highway 17 if that lower culvert should fail.

10/18/2007 - 11/05/2007 Brush meets with the chief of staff for Abel Maldanado, our State Senator, at the site. We show her the various communications, and she agrees to present this to the senator. The senator works to get Caltrans to take another look at the matter, and to put Kimberley Kim back on the issue. Brush files a claim to recover its engineering costs incured following the original agreement where the State would fund a repair if Brush Road developed a repair plan, as a statue of limitations looms.

12/7/2007 Caltrans agrees to have its engineers and department staff meet with the Brush Road board, with out lawyers present, to see if a workable solution can be achieved outside of the court system. (Seems like an excellent idea! - Editor).

12/14/2007 Caltrans and Brush meet in their Oakland headquarters, discuss the issues as we each understand them, explore various options, and agree to continue to work together.

2008
Rainfall 68% of normal (June 1,2007 - May 30, 2008)

1/2008 - 2/2008 Caltrans and Brush have a series of meetings, their staff inspects the site jointly with us.

03/31/2008 Caltrans discovers the 1941 Foster - Steinbeck agreement, and forwards a copy to Brush Road. Basically, this clearly shows the culvert was built by Steinbeck, not by the State, and further has Steinbeck retaining the rights to use & repair the entire road and all of its culverts.

1/2008 - 4/2008 Caltrans and Brush have further face to face discussions and phone negotiations, and finally agree in principle that Caltrans will pay $42,000 to Brush if we fix the culvert, and take recorded ongoing responsibility for this section of road. State drafts up an agreement between Brush Road, Sal (as the owner of the land even though he is also a member of Brush Road), and the owner of three additional parcels on Ridge Road, which is not a part of the Brush Road corporation, but rely who rely on this road for access to their homes.

05/28/2008 Minutes of the Spring 2008 Members meeting. Motion is made and passed to direct the Brush Road Corporation to sign the Agreement and Release with the State, and accept the State money, and also to proceed with work towards getting the culvert repaired

06/10/2008 Brush Road obtains signatures of the 3 Ridge Road Owners

06/20/2008 Brush Road informs Sal that the Brush Road Corporation has reached agreement where the State will pay $42,000 to help repair the road, in exchange for the signing of an Agreement and Release document. All of the Brush Road members and the Ridge Road owners have signed this, and we just need Sal's signature to get the money from the State.

06/29/2008 Letter from Brush Road to Sal, 1) pleading that he sign the agreement as he promised, 2) pleading that he contribute $1,500 to the repair, and 3) seeking to learn if there is some issue with the agreement causing him to refuse to sign as he promised

In a face to face meeting at the site, Sal outlines 4 conditions he requires for Brush Road to perform in order for him to sign the agreement and allow the repair to take place.

07/29/2008 Letter to Sal stating that Brush Road has completed his four conditions:

1) Plot out a drainage easement covering the land needed for the repair;

2) Brush Road Corporation get Liability Insurance;

3) Easements be prepared for the Ridge Road people you have just prescriptive easement over the culvert road;

4) Brush Road contractor get insurance for the repair;

08/01/2008 Letter to Sal asking him to please sign the agreement

08/03/2008 Letter to Sal pleading again that he sign the agreement, and reminding him that we agreed and implemented all of his conditions, and further reminding him that his payments of the Brush Road Dues are well overdue

08/07/2008 Letter from Sal's Attorney, Matthew Hurley, who states that Sal has engaged him to handle the matter for Sal going forward, and asking for background information.

08/08/2008 Letter from Brush to Matt Hurley, thanking him for his involvement, and supplying him preliminary background information.

08/11/2008 Follow up letter from Brush to Matt suppling additional backgroung data

08/12/2008 Letter from Matt to Brush asking for additional information, as his client had assumed the culvert was not on the client's property

08/12/2008 Letter from Brush to Matt answering his additional questions, and forwarding various pictures of the site

08/12/2008 Letter from Brush to Sal, thanking him for paying his past due balance

08/14/2008 Letter from Matt to Brush, thanking for all of the data and the pictures. Matt states he has been on the site numerous times, and certainly has noticed the drainage structure. He again asks if there has been a survey to determine if the structure is on his client's land, as well as a number of additional questions about other drainage culverts.

08/14/2008 Letter from Brush to Matt, assuring him that the State had shown us property corners that clearly show the culvert is on Sal's land. Futher Brush addresses his questions about other drainage

08/19/2008 Letter from Brush to Matt, stating that Brush feels it has answered all the questions, and fuly breifed Matt on the matter, and asking for his client's signature on the Agreement and Release so that work could begin before the winter rains

08/21/2008 Letter from MAtt to Brush threatening litigation, claiming that Brush Road has not shown him any indication that its members have the right to use Brush Road (despite the recorded bylaws attached to his client's parcel, and the Steinnbeck - Foster agreement, also attached to his client's property

08/21/2008 Letter from Brush to Matt, citing his client's title report, which show the Steinbeck - Foster agreement as item 5 and the bylaws of the Brush Road Associated as item 10. Brush further states it has not wish to litiget; it simply wishes to do its part to insure its members (including Sal's tenants) continue to have ingress and egress capability to their lands.

08/22/2008 Letter from Brush to Sal, asking him to bring some business sense to the matter.
The letter reminds him that his lawyer
1. questions whether the Brush Road members have a right to cross the culvert;
2. states he does not like the easement;
3. claims that other people broke the culvert, and they should fix it.
Brush states
1. that its members very clearly have ingress and egress rights, as shown in the public documents;
2. states that it is willing to eliminate the easement, and let Sal repair and maintain the structure, or work within a smaller easement, should Sal have one drawn up; and
3. reminds Sal that no one is asking him to contribute any mony towards a fix; that the State of California and Brush Road coporation have been offering since July, 2008 to perform the fix using their own money at no cost to him.

08/25/2008 Letter from Matt to Brush where he restates what Sal told him was the agreement worked out verbally between Sal and Brush Road corporation. Matt cites 5 points:
1. Sal would grant temporay permission for Brush contractors to enter his property and make a temporary repair;
2. Access is to just a reasonable area;
3. Workers will be licensed and insured;
4. Other culverts (which have been in place for more than thirty years, yet he asserts are new) will be removed from the property;
5. Easements will be negotiated later passing responsibility for future repairs and maintenance to Brush from Sal.

08/25/2008 Letter from Brush to Matt agreeing that indeed, a lot of progress was made in the on site discussion; however clarifing that
1. the company can not do work outside its easement, so needs the easement established first, and then work will begin; or is willing to refer the contractors Brush Road has identifed to Sal, and he can engage them, and after the work is completed, investigate transfering the completed structure to Brush Road for its future repair & maintenance; and
2. stating that the maintenance performed on the uphill culvert is not related to the failure, that the uphill culvert itself is not new, but further recognizing that this is a topic that will need deeper discussion, and suggesting fixing the failed culvert now, and talking about the uphill culvert later

08/28/2008 Letter from Brush to Matt, asking that he reply, and further sharing documents showing the context of the various easements (large and small) discussed during the month

08/29/2008 Letter from Matt to Brush expressing surprise that the Brush Road corporation would not be willing to do some temporary patch work outside its easement, and accusing us of bullying his client. The matter of the uphill drainage culvert is cited as a brand new non negotiable condition imposed by Sal.

08/29/2008 Letter from Brush to Matt outlining Brush's very practical considerations:
1. The State was the last to touch the structure, so doing a temporary fix would shift that responsibility on the party who is next to tocuh it
2. Contractors tell us the cheapest fix is the permanent fix, and there is still time to do this.
3. We have enough money to do the permanent fix, but not to do a temporary fix and then a later permanent fix.
4. The State has offered $42,000 to Brush Road if it takes over permanent management responsibility for the culvert, but this requires an easement for Brush Road to become that party.

09/30/2008 Brush Road's attorney contacts Sal's attorney via phone, and in the discussion suggests mediation as a way to resolve the matter. Matt agrees to contact his client to get his views on the suggestion.
12/19/2008 Letter from Brush Road Attonrey to Matt, wondering if his client has decided on whether he would agree to mediation, and reminding him that in the current budget crisis, the State's offer of $42,000 may disappear

12/29/2008 Sal's attorney states his client has no intention of working with us, he refuses mediation, he does not like the proposed fix, and he states that he believes we installed some new culvert higher up on Brush Road which caused the failure. (Editor's note - we have since reailzed that this culvert repair work was done 8 months AFTER the large culvert failed).
We again ask that if Sal feels our proposed fixes are inadequate, that he present alternative plans. We restate that there was no new culvert installed; instead as a part of our regular maintenance, we repaired the catch basin around a culvert higher up Brush Road; and thay this neither increased nor decreased the flow of water.

2009
Rainfall 77% of normal (June 1,2008 - May 30, 2009)

01/20/2009 Brush communicates to the State that Sal will not sign the agreement. The State examines the Steinbeck - Foster Agreement, and takes the position that this easement gives the holders the right and obligation to maintain the road, and that the easement is a part of the road, and so Brush (as the grantee of the easement) has the right to fix the culvert, and so drafts a new agreement between the State, The Brush Road corporation, and the three Ridge Road owners

02/20/2009 Brush and the State complete the negotiation on the language of the revised agreement; Brush calls for a Membership meeting to approve the revised agreement. Sal notifies us that his attorney plans to attend the meeting. We remind him that it is a member only meeting, but that we are happy to have our Board and its attorney meet with Sal and his attorney before the Membership meeting.

02/27/2009 Brush meets with Sal (and attorneys) on site. Sal demands that all culverts that drain any water onto his land from the road be removed, before he will allow any repair of the failed culverts. We remind him that these culverts have been on his land for at least thirty years; and he has only owned the land for 5 years. The culverts were there when he bought the land.
We also point out that all of the water draining from the road to his land, first drained from his land onto the road. We state that we will remove the culverts if he builds a curb that keeps all of the water originating from his land on his land (at which point it will enter the same ravine).
In order to end the debate, we offer to get a bid for installing a storm sewer system that will capture the water at the various uphill culverts, and keep the water in a pipe installed in the road, and convey the water to the location of the failed culvert's inlet (or perhaps outlet). After eaxmining the cost of such improvement to Sal's land, we would consider how to pay for it. (Editor - the contractor estimates comes out to about $120k with the cost for engineering and permits)

3/4/2009 Minutes of the Spring 2009 Members meeting. All attending the meeting vote in favor of Brush signing the agreement, and accepting the State's money.

03/17/2009 Letter where we summerize our discussion of 2/27, and correct some misunderstandings - Brush never committed to implement a storm sewer project; instead we committed to get a bid for such a project, and then discuss options for funding the improvement to Sal's property.

03/30/2009 We obtain a bid for $120,000k for installing the storm sewer. (this includes the estimation of the required permits and engineering studies for such new construction, which are estimated to be about $60k).
We get an alternative proposal to simply lay flexible plastic pipe done the ravine to hold the water collected by the culverts, and bury and hence anchor this pipe with drain rock. The drain rock will further serve to improve the stability of the ravine. The bid for this is $15,000.

05/15/2009 Minutes of the Membership meeting. Sal attends this meeting in person. We inform everyone that the check from the State has been received, and that construction season has now opened up again. Sal states his position that he requires us to alter the culverts further up on his land before he will allow us to repair the lower culvert. Sal claims he has not seen our proposals so we agree to meet him again and present them.

07/09/2009 Brush meets with Sal at one of his resturants in Palo Alto, and we discuss the culvert. We remind him of our proposed fixes, and state that we believe the members would likely vote to have Brush Road pay for the second fix (laying platic pipe in the ravine and covering it with drainrock) as a gesture to address his concerns, as the cost would be about $500 per parcel.
However, we feel that (in this economy, or any economy) our members would not be in favor of paying about $10,000 each to install a storm sewer in the road; as this is more than a gesture.

08/08/2009 Brush meets with Sal at the site and discusses the possible ways forward. The construction season is rapidly closing, and we risk the danger of another winter rains causing the feared complete collapse of the road. Sal reviews the state of the lower culvert, and his face shows that he sees that the risk has increased over the years.
He states that he does not want the platic pipe in the ravine; and instead he agrees that if Brush will install a curb to block of one culverts temporaily (the one at the top of the ravine), and further install curbing along the lower section of Brush Road to keep the water that would otherwise drain into that culvert on the road, so it would drain all the way down the road (hopefully not creating a hazard) and into the large culverts basin, that he will remove his objection to our repairing the lower culvert.
We agree to this in priciple, and offer to mark the location of the various curbing and have Sal come back and review this before we start work. We make the marks, but Sal is very busy and can not visit the site.

08/12/2009 Brush signs the contract with our contractor to begin work, with a start date of 8/17/2009, in anticipation that Sal will indeed find time to visit the site and approve their locations as we discussed.

08/13/2009 Brush sends notice to its members that work will begin on 8/17/2009, it will take about 3 weeks; the road will never be closed, and that all should drive carefully.

Index of agreements, easements, and other documents

Concerning the Repair of the Culvert

The final Agreement and Release as signed by the State, Ridge Road Owners and Brush Road Corporation (pdf).

Request for Proposals to repair the Culvert, in accordance with theAgreement and Release

Bid to repair the Culvert from Pete Messa & Sons, Inc.
Insurance for Culvert Repair from Pete Messa & Sons, Inc.(pdf)
Engineering study of the existing Drainage in the culvert watershed by Roy A. Nelson, CE.

Note that because this proposal is a repair of existing drainage, which does not change any drainage pattern, or have any negative effect on the flow of water or alter its quality, the County has signed off that no permits are required.

Concerning other drainage ameliorations

The current land owner is interested in the construction of alternate drainage structures along the road upstream but in the watershed of the culvert. We have recevied a Bid to realign some Drainage from Pete Messa & Sons, Inc. which proposes one such alternate which includes installing new catch basins and drain pipe along a portion of Brush Road to direct some surface water around its current and long time path to instead flow around the culvert and rejoin the flow further down the hill. The bid consists of approximately $41k to do the pipe work, and three options for resurfacing the road:

$13k to perform a simple patch along the path of the new pipes;
$25k to repave the entire lower section of the road with 2 inches of asphalt, or
$35k to repave the entire lower section of the road with 3 inches of asphalt.

One would need to contract for the $41k plus one of the repaving options.

We have been advised that because this proposal would alter the drainage pattern of storm water runoff from its existing path, approvals would be required a from number of State and County offices (including but not limited to US Fish and Game, The Department of Natural Resources, Santa Clara Water District, Santa Clara Building Department, as well as from the down hill property owner (The State of California)). Nearly all of these agencies would require a complete engineering study of the effects of this diversion, which would provide insurance against any issues that arise from such construction. We received a bid for such a study from Roy A Nelson, CE in the amount of $60k. In addition various permit fees and expert testimony fees would also be required.

As a result the minimum amount required to fund this proposal is about $120k.

Background material

Older proposals which are here just for reference

The Bottom Line

The State of California has offered to contribute half of the cost to fix the culvert, with the condition that the Brush Road Corporation take on the responsibilty & liability for maintaining the culvert for the rest of time.
The Brush Road Corporation has agreed to accept the maintainence obligation, and further to fund the balance of the construction cost.
The Brush Road Corporation needs a recorded easement from the landowner (Los Gatos Real, LLC) to permit the corporation to repair the culvert and maintain it for the rest of time, the borders of this easement roughly consisting of the small yellow box in the picture.
The landowner has not yet granted an easement; so far the progress has been limited to the series of email querys detailed below on the time line.

The Back and Forth

Below are a series of letters containing the back and forth conversation as we try to convince the landowner and his attorney to grant to the Road Corporation this easement. We remain hopeful that the landowner sees reason before the road collapses and/or one of our friends or neighbors is killed crashing into his canyon.

The parties communicating are:

Matthew Hurley ("Matt"), the legal representative for Los Gatos Real, LLC. Los Gatos Real, LLC owns the property where the culvert is located.
Salvatore Giovannotto ("Sal"), the owner of Los Gatos Real. LLC, which owns the land
Matthew L. Goetz P.L.S. ("State"), the Chief of Right of Way for District 4 of the California Department of Transportation
Michael McNamara ("Mac") the president of the Brush Road Corporation.

8/12/2008 Mac->Matt

12/19/2008 Mark->Matt

Subject: Re: Brush Road
From: <Michael McNamara>
Date: Tue, 12 Aug 2008 17:32:22 -0700
To: <Matthew Hurley (LGR Atty)> CC: <Salvatore Giovannotto>, <Carrie Martin>, <Scott Landstrom>, <Mark Strombotne (BRC Atty)>, <Kurt Anslinger>

Excellent questions, this is a good dialog. I believe this is an effective way to bring you up to speed on the situation in a rapid manner.

Perhaps you should visit the site. It has helped others tremendously to understand the issues.

Absent such a journey on your part, I have attached some pictures I took last winter. Pictures IMG_1942 and IMG_1944 are looking from the top of the dam, at the position marked A on the map below, looking towards the yellow area which is the approximately 35 foot deep hole. As you can see in the map, the Giovionato Land is marked, and is bordered on the North by Brush Road, and on the south by the straight line. This is a topographical map, so you can see the stream bed where the water flows. The culvert failure site is shown in yellow, and then the dam with the road passing over it, and then heading to the edge of Sal's land. The picture IMG_1945 is also taken from the spot marked A, but looking more to the left, towards highway 17, and you can see a car coming up the road. In this picture you can see on the right the vertical part of drainage structure, and the relative size of the car, and you get the sense that you could pack four or five cars into this hole; and that there is no fence or barrier to slow down such cars. In 2006 a grandmother visiting her kids home up here failed to make the turn and drove into the edge of the hole, but stopped in time. Back on picture 1942 you can see the edge of the dirt where it has caved in, and the brown markings on the vertical pipe. Originally, the dirt covered the vertical structure up to the brown markings.

So this section marked in yellow is the "water trapped behind the dam", which is eroding the bank, and threatens to eat under the road from the up stream, yellow side, not the downstream side; that section (marked 'c') is fine.

Picture IMG_1946 is taken after we walk down the road in the direction that yellow car came from, and we get to the edge of your clients property (marked B on the map). Picture 1947 is taken from point B, but looking to the left of the road, to the point where the water comes out of the pipe; this point is marked c. Picture IMG_1951 is the view the person in the yellow car would have if she got out of her car and looked towards the culvert.

So, I hope this virtual tour has helped you understand more the site, the depth of the hole, and the magnitude of the problem.

[Editor's note: See also an Aerial view of the site.]

I answer your other questions inline.
________________________________

From: <Matthew Hurley (LGR Atty)>
Sent: Tuesday, August 12, 2008 10:19 AM
To: <Michael McNamara>
Cc: <Salvatore Giovannotto>
Subject: Re: Brush Road
Mr. McNamara:
Thank you for your assurance of cooperation with regard to this serious and complicated matter. I trust that we will all work toward a satisfactory result in good faith.
I still am looking for a basic verification that the property corners for the areas in question have been adequately identified. You state that since 2005 there has been no question as to the fact that the drainage structure resides on my client's property. I am not so quick to come to these types of conclusions without the information necessary to back it up. I simply have asked if a survey had been completed and field markers installed so that the circumstances can be readily identified both of record and in the field. I have reviewed a proposed easement document forwarded to my client that was prepared by a civil engineer. Did he provide field markers of the points he described in a manner that can be reviewed in the field? What benchmarks did he use in establishing his legal description?

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We get into a cost situation here. Your client has not contributed any money to the culvert discovery project. [Editor: Sal's check arrived later that day] The Brush Road Company maintains the road which begins after the area where the problem exists; not this section. Members of the Brush Road Company do have an easement for ingress and egress over this section of Road. The 27 other members of the Corporation have advanced funds in 2005 to give us the ability to engage surveyors, lawyers, hydrologists and engineers to study the problem and come up with solutions. Your client has not contributed to this fund; despite the fact that he has a deed obligation to do so.

The Brush Road Corporation has no authority to permit our agent to go beyond our twenty foot easement on to your client's property and ascertain where on his property this structure exists. That said, there are existing field marks at the corners of the State's property, which someone from the State has highlighted by attaching plastic tape into the trees above their position. This is not a certified survey, and we have asked, and the State has agreed as a part of the settlement to install clear, permanent property boundary markers at the edges of their property.

We would encourage you to hire a certified surveyor and have him find the property corners and mark them (perhaps installing a 4x4 redwood post, so that they are easily discernable, in order to make all of the boundaries of your clients property very clear; and further to determine where on your clients land the drainage structure resides.
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I also would like verification that the drainage structure was installed at the same time as the road improvements for this section of Brush Road.

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And we would like this also. Ideal would be to find the contract between the builder and the owner, and the cancelled check showing who paid for it. As I stated previously, the road was built from 1938 until 1940. The best verification we have is the Highway 17 As Builts we obtained from the California Department of Transportation, where page 4 shows the right of way they obtained, and shows the old alignment of the Ridge Road and Ranari Road, and then page 6 (the As Built) shows that Ranari Road access is gone, the new Brush Road access road is built, and the culvert is detailed. So we have the before (1938) with no road or drainage structure, and the after (1941) with both in place.
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Has the State acknowledged that all of these drainage improvements were constructed as part of their Highway 17 improvements or has that been assumed from the circumstances?

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The State could find no evidence that they built it, or that they did not build it. They are taking the position that since it is not on their land, that they did not build it. We took the position that the later acquisition of the Logan land (in 1941) shows that perhaps they in the spirit of "Get it Done" built the highway and necessary roads and drainage structures where it made sense to do so on the field, and then later did the paperwork back in the office to clean up any property issues later, and that perhaps this one fell through the cracks. Then they advanced the thought that perhaps Logan was willing to sell them his land, but Foster was not, and perhaps Foster agreed to maintain the structure even though possibly the State's contractor built the structure. Or perhaps Foster built the structure, and had no desire to give the state any of his land.

Then early this spring they dug into your client's title, and discovered the existence of the Foster-Steinbeck agreement, where the entire length of the road, including the length crossing the dam and drainage structure is called out, and it is stated that Steinbeck paid for the construction, repair, maintenance of the road, that he retained rights to continue to use and repair the road, and that Foster has no responsibility to pay for any of these repairs as long as he lives (therefore implicitly, after his death (or he sells the land), this guarantee from Steinbeck expires). This Agreement establishes the right of the Brush Road Corporation to cross Sal's land and use the road, as well as to maintain the road (it is an ingress & egress easement). No mention is made of the drainage structure.

We could compel the State via discovery to share with us all of their records, and go on a witch hunt through their files. The Brush Road corporation is not in a position to do this, because we do not have standing to file a lawsuit (The structure is not on land that is owned by the company. Perhaps when and if the structure's failure destroys the road, we would have standing, but it is not clear that the defendant would be the State of California at that point; and in such a scenario we would be flying helicopters to get to our land).

You need to advise your client, but I am not entirely sure if your client has standing either; as it is presumed by the courts that when one purchases property one accepts it in the condition as it is disclosed to you. Sal might have a disclosure issue with the person who sold him the land. Perhaps the person who purchased the property from Foster had some standing to file a suit against the State of California, but it is my understanding that the successive owners get it the way it is when it is conveyed to them (I believe this is called estoppel by deed).
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What maintenance has been done to the drainage structure since its installation? Has the State acknowledged any maintenance to these structures during their "friendly neighbor" duration?

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The State fully acknowledges that they have been continuously maintaining the structure from 1938 until 2005. Long time residents of Brush Road confirm this, reporting that CalTrans workers would regularly inspect the drainage, and once every few years excavate around the structure to avoid too much build up of silt and other debris. Please again recognize that CalTrans has an imperative to keep the State Highways open, and they do an excellent job of doing the maintenance necessary to make this happen. We presume that in doing such a cleanup, it is likely that they damaged or weakened the structure (perhaps they hit it with a backhoe or front end loader), and that subsequent storm water runoff found the weakened point, and has precipitated the ongoing failure of the structure. Or alternatively, the structure is 70 years old and was only rated to last for 50 years, so it is outside of its service life.

We believe that their fear that our argument would carry weight with a jury led them to offer the $42,000 to fix the problem. Again, we would need your client to advance the suit, as he is the only currently injured party (Sal owns the structure that would be alleged the State damaged); Brush Road Corporation would gain standing by suffering damage when and if the failure precipitated a partial or complete collapse of Brush Road.
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I note that the Ridge Road owners have been singled out for direct participation. I presume that they are not members of the Brush Road Corporation.

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This is correct.
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It would seem that they would need to become members if the road segment in question becomes the obligation of the Corporation since without a right to use this section they will be landlocked.

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One way for them to gain clear title would be as you describe, for them to join the Brush Road Corporation, and hence get access to its easements.. Alternatively, your client could grant to each of them an ingress-egress easement over just this road segment. As is clear from the Foster-Steinbeck Agreement, such access has not been granted in the past as the Agreement required this to be recorded, and approved by Steinbeck or his grantees. I have seen no evidence that restriction has been eliminated.

With the formation of the Brush Road Corporation in 1988, all of the easements each member held were granted to the corporation for the use of all the other members. One of these easements is the Foster-Steinbeck Agreement, and as such, you client's granting of access over this portion of the road to the Ridge Road parcels well may require the approval of the Brush Road Corporation. In any case, it is my sense that the feeling of the BRC is that it would be best from our perspective that your client grant to the Ridge Road folks access just to the road segment that they need to get access to their homes. If indeed we still have this right of approval, we would need a vote of the members, which I would be happy to conduct.

In any case, once they have access, we would either require them to contribute to a BRC fund that is designated specifically for the maintenance of the structure and the short road segment; or we would form a second corporation (perhaps a subsidiary of BRC) to administer this road segment, and have them join that entity.
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I believe that, in the interim, my client will need an acknowledgement from the Corporation and the Ridge Road owners that any use of the segment of Brush Road previously believed to have been on State property, but now believed to be on my client's property, is with the permission of my client, and not pursuant to any prescriptive rights.

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The Brush Road Corporation parcel owners have clear deed rights by easement granted under the Foster-Steinbeck agreement for egress and ingress over this road, including the segment that many assumed was on State land. This is a clear title, and it is shown as Parcel 2 on your client's title report.

The Ridge Road people are in a murkier state. We have suggested that your client grant specific easements to each of these parcels to clear up any perception of prescriptive easement. This mostly is a matter between your client and these owners; BRC (may) have a right to deny such a grant, again based on the Foster Agreement; and we would certainly approve your client granting to these parcels the right to cross the minimal segment needed to access the State Highway from their parcels.
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I have also noted that it has been almost a given that prescriptive rights may have accrued to the State and/or other individuals as a result of the passage of time under the current circumstances. Of course, the establishment of rights by prescription requires that the establishing party or parties knew of the open, notorious and hostile nature of their use and that the property owners likewise knew, or should have known of this open, hostile and notorious use. In the case at hand, it appears to be quite clear that no one knew of the actual circumstances surrounding the use of the land in question until very recently. In fact, it is clear that the corporation and the Ridge owners believed that the State owned the land and was responsible for its maintenance......

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That is also my read of the California code covering prescriptive easements. I believe further that in California the party wishing to establish prescriptive ownership rights must also demonstrate that they have paid the property tax.

However, despite the fact, or possibility that some or all of the Brush Road members incorrectly assumed that their rights to cross this road segment were based on their common ownership as residents of the State of California, it is the case that they have a clear, restricted right to use the segment based since 1988 on their membership in the Brush Road Corporation, and before that as grantees of various properties carved out from the Steinbeck ranch, and the easement granted to that land by the Foster-Steinbeck agreement.
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Lastly, I once again ask if any inquiries have been made as to alternative solutions to the drainage issues which do not include maintenance of the current situation? For example, has anyone inquired about installation of larger culverts under the road segment,

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We had a half dozen engineering contractors examine the site, and propose possible fixes. The CalTrans Engineers examined the site, and proposed inserting a 20 inch diameter plastic pipe into the existing 25 inch corrugated steel pipe as a fix. We then engaged (at Brush Road Corporation's expense) an engineering design firm to design the best solution based on these inputs, and what was designed is close to what you describe. They inspected the site and determined that there is significant erosion of the pipe walls under the road (the horizontal segment is about 100 feet long), such that it would not be possible to insert a 20 inch diameter pipe for the whole length; and that a smaller diameter would not be sufficient to carry the entire flow of water given a storm that happens once a century. They recommended that the cheapest, best solution is to insert a 4 inch pipe into the existing 25 inch CSP, and build essentially a french drain at the base of the canyon (perforated pipe that would let water flow in, but not be blocked by a few leaves or rocks), and then cover this with rock and an binder to hold it all together, but still allow water to seep down to the french drain. Then we would cover this with dirt up to the grade level, and then build a channel on the surface (or lay a pipe juts below grade) which is set up to accept the storm runoff, and direct this through a large 4 foot diameter pipe that would be just a few feet beneath the road surface, and take this water out to a diversion road field which would slow down the water, and continue it on its way to the next drain, which takes the water underneath the State Highway.

We have bids in the range of $100 to 120k for this. (which I attached in my first email to you).
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bridge possibilities in the affected area,

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This is also a possibility, although based on the expert's opinions, it would cost a lot more to remove the existing dam, relocate the soil somewhere, and build the replacement bridge. If there is a catastrophic failure this winter (effectively removing the soil, hopefully not blocking State Highway 17), then we would most likely install an emergency bridge at great cost as a rush job.
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or retention facilities on the downhill side of the road segment where the most problematic erosion has occurred?

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Actually the failure is at the face of the dam, the uphill side of the road; this is eroding and collapsing into the hole, and then the dirt flows into the existing pipe and down the mountain. If we made the face of the dam stronger, but did not shore up the integrity of the pipe under the road, then if/when that pipe collapses and gets blocked with debris, this would lead to a build up of a lot of water behind the dam, which would make the situation worse, as that water is heavy, and the dam is not designed to be strong enough to hold back this weight of water, and it would collapse; and of course before that it would flow over the top of the dam (where the road is) and make access to our homes impossible.
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Are we simply proceeding under the assumption that the current situation is the best solution to the problem?

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We have spent about $10,000 to get considered engineering opinions on the best solution; in addition we have gotten the free advice from the State Department of Transportation and from the various engineering contractors who have bid on the job. We could always get more opinions, but perhaps this is enough?
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Your response is appreciated.
Sincerely,
Matthew H. Hurley
Attorney for Los Gatos Real LLC

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