# Fence on retaining wall that secures public sidewalk and road



## Nate (Jul 27, 2018)

I'm looking for the code or reason to argue the need of my city to repair a fence that is abutting the back of my property at the top of a retaining wall.

My property backs up to a retaining walk that secures a public road and sidewalk above it. There is roughly a 9 foot drop off from the public sidewalk to my property below. On the road side above there is the lip of the retaining wall that sticks up roughly 20 inches and a three foot fence sitting on top of the lip.

The fence is falling apart and in need of repairs, and we don't belive it is our responsibility because it was clearly put in place to protect the public from falling into our property, and some, neighboring properties have the same fence installed and claim it was installed by the county long ago. Additionally, there is no requirement stating that we must have or maintain a fence on or around our property so that's the argument for us not being responsible for it, and also our property record clearly shows our property edge stopping before the retaining wall.

Of course the city is claiming it's not their responsibility to repair the fence as they have no such code. We're planning on taking the argument to the county as the responsibility falls on them, but they will likely deny responsibility without us providing adequate reasons.

Does anybody know the codes that requires a safety barrier on a drop off from a public walkway?

My county follows the international builders code and FCOZ, but I'm not sure what to look for.


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## cda (Jul 27, 2018)

Sounds like you need to find out who owns it first.

Is it inside or outside your property line??

Is it or the wall shown on your legal property plan?

Is there an easement on your property and where this wall/sets?


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## north star (Jul 27, 2018)

*@ ~ @*

Nate,

Welcome to The Building Codes Forum !  

I agree with ***cda*** in that you need to find out who
actually owns the property........Is it in the city
Right-of-Way, or part of a development ?........The
city should have some recorded documents, ...somewhere.

Once ownership is verified, then you can proceed with your
next steps.......Have you looked online to find the officially
recorded property records ?............Most Landroll records
are online.

*@ ~ @*


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## JCraver (Jul 27, 2018)

If they own it, it's theirs to repair.  If your property clearly stops before the retaining wall as you say, then you are not (should not!) be responsible. 

Any codes requiring the fence/barrier won't be in any building codes - building codes only govern those things attached to buildings.  "Public Ways" and the like, will likely be governed by highway dept. standards - think DOT for your State/locality.


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## cda (Jul 27, 2018)

Well some cities counties do not take care of thier property

Can you say pot hole

Sometimes it takes a lot of screaming and yelling

Sometimes it is emails to council people/ mayor till you find someone that will listen and do something

Or MY favorite contact the media 

They always need filler stories and some have investigative reporters


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## ADAguy (Jul 27, 2018)

Call your local news team with your story.


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## Nate (Jul 27, 2018)

cda said:


> Sounds like you need to find out who owns it first.
> 
> Is it inside or outside your property line??
> 
> ...



There is no easement, the property is on a cul-de-sac and the public road and sidewalk runs behind it towards the top of the retaining wall. There is no mention of us having any wall or special permit on the property records.

When looking at the topographical markings of the lot boundaries from public records I can clearly see that the lot ends at the retaining wall, and I can see the fence on the center of the retaining wall outside of the lot boundary.


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## Nate (Jul 27, 2018)

JCraver said:


> If they own it, it's theirs to repair.  If your property clearly stops before the retaining wall as you say, then you are not (should not!) be responsible.
> 
> Any codes requiring the fence/barrier won't be in any building codes - building codes only govern those things attached to buildings.  "Public Ways" and the like, will likely be governed by highway dept. standards - think DOT for your State/locality.


Great suggestion! I think you're on to something here. The retaining wall and hence the fence were clearly put into place to service the public road.


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## Sleepy (Jul 27, 2018)

You might try notifying the county attorney, or whichever jurisdiction owns the sidewalk, that they have a potential liability problem if someone trips and falls over the ledge because of the deteriorated fence.  Include your research that the fence is on their property and thus their responsibility.


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## classicT (Jul 27, 2018)

Sleepy said:


> You might try notifying the county attorney, or whichever jurisdiction owns the sidewalk, that they have a potential liability problem if someone trips and falls over the ledge because of the deteriorated fence.  Include your research that the fence is on their property and thus their responsibility.



They own it... be a real shame if someone got hurt and it is in the public record that you notified them. First set of calls are to the city manager and lawyer, 2nd set to the media.

Give it time, they will come around.


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## my250r11 (Jul 27, 2018)

Sounds to me it is In the Right Of Way(ROW) and belongs to the city or county and they are responsible. Like others said make a few calls if no response call the news.


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## Msradell (Jul 27, 2018)

One question that comes to mind is why is the retaining wall there?  Was it put in by the developer so that he could build on the property or was it put in by the government so they could build the road?  That could definitely come into play as to whose responsibility the wall and the fence are.


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## ICE (Jul 27, 2018)

I would not be surprised to learn that property owners in your area are responsible for maintaining the public property right up to the street curb.


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## MtnArch (Jul 28, 2018)

ICEman - I think it would be hard to enforce requiring a property owner to maintain public property if it's outside of their property line.  Not seeing the property boundaries leaves us all guessing, but unless their property line goes to the center of the cul-de-sac and there is simply an easement for public access on that portion of the owner's property I think the City/County would be required to keep it maintained/repaired/replaced.


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## Msradell (Jul 28, 2018)

In most areas the owner is responsible for maintaining the sidewalk in front of their property.  In this case is a very unique situation because the OP actually has no access to the sidewalk and its behind his property.  Hope he keeps us informed what the end result is.


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## Rick18071 (Jul 30, 2018)

This reminds me of my old neighborhood in Philly. In the hilly sections there where lots of old stone retaining walls. They were only 2' higher than the higher sidewalk/street. Never had any fences on them and still don't.


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## tmurray (Jul 30, 2018)

ICE said:


> I would not be surprised to learn that property owners in your area are responsible for maintaining the public property right up to the street curb.



Do they replace side walk panels too?

We have residents that landscape/maintain the public right of way directly in front of their property. It is not an expectation, they simply do it to beautify their home. I would question the ability to create a law requiring someone to take action on property that is not their own.


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## ICE (Jul 30, 2018)

tmurray said:


> Do they replace side walk panels too?
> 
> We have residents that landscape/maintain the public right of way directly in front of their property. It is not an expectation, they simply do it to beautify their home. I would question the ability to create a law requiring someone to take action on property that is not their own.


I live in California. Anything is possible here.  There’s a city in California that levies a tax on property that has a nice view. No kidding.  It’s an ocean view that can cost you.

On more than one occasion I caused a retail establishment to replace sidewalk when the TI was completed.  Of course that is commercial but don’t surprised if it happens with residential as well.  A driveway approach is on the owner and where I live the right of way is my responsibility with their rules on what I can do with it.


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## ADAguy (Jul 31, 2018)

Gentlemen, are you missing the point that the wall is a retaining wall for the street?
Public works would have had to have been involved, no?
Sounds as if the wall went in before the property was developed.
Check old Sanborn maps.


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## Msradell (Jul 31, 2018)

ADAguy said:


> Gentlemen, are you missing the point that the wall is a retaining wall for the street?
> Public works would have had to have been involved, no?
> Sounds as if the wall went in before the property was developed.
> Check old Sanborn maps.


That was my first thought but then I thought that maybe the developer of the retaining wall into give the property some yard space.  Where the retaining wall is in relation to the property line and right of ways is going to be an important fact.


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