Untitled California Attorney General Opinion ( 1993 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-1004
of :
: MARCH 23, 1993
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE VALERIE BROWN, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
May a city authorize its residents to install basketball standards in the public right-of-
way between the sidewalks and street curbs of residential neighborhoods so that the backboards face
the streets and extend beyond the curbs?
CONCLUSION
A city may authorize its residents to install basketball standards in the public right-of-
way between the sidewalks and street curbs of residential neighborhoods so that the backboards face
the streets and extend beyond the curbs, provided that the safety and convenience of the traveling
public are protected.
ANALYSIS
We are advised that a city council is considering the implementation of a permit
system to provide additional recreational opportunities for the residents of the city. It would issue
an encroachment permit to a resident allowing the installation of a basketball standard, with attached
backboard and goal, in that portion of the public right-of-way consisting of the landscaped strip
owned by the resident between the sidewalk and curb. Issuance of the permits would be granted in
accordance with certain criteria as to location, e.g., in cul-de-sacs and on short residential streets,
with minimum specified distance from property lines, adequate visibility to motorists, and adequate
sidewalk and roadway clearances. The permits would also be subject to certain conditions
pertaining to use, e.g., consent from residents of neighboring homes, limitation on hours of use, and
evidence of public liability and property damage insurance. The criteria and conditions would be
specified in a duly enacted city ordinance.
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The question presented for resolution is whether a city may establish a permit system
for the installation of basketball standards as above described. We conclude that it may, as long as
the safety and convenience of the traveling public are protected.
The general authority of cities to adopt regulations and ordinances is set forth in
Article XI, section 7 of the California Constitution:
"A county or city may make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict with general laws."
This authority, often referred to as the "police power," is a plenary power subject only to the
limitations that it be exercised by cities (and counties) within their territorial limits and be
subordinate to state law. Apart from these limitations, a city's police power is as broad as the police
power exercisable by the Legislature itself. (Candid Enterprises, Inc. v. Grossmont Union High
School Dist. (1985) 39 Cal. 3d 878, 885; Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129, 140;
73 Ops.Cal.Atty.Gen. 28, 29-30 (1990): 73 Ops.Cal.Atty.Gen. 13, 13-14 (1990).)
The "general laws" most relevant to the present inquiry are the statutes contained in
the Vehicle Code.1 Section 21 provides:
"Except as otherwise expressly provided, the provisions of this code are
applicable and uniform throughout the state and in all counties and municipalities
therein, and no local authority shall enact or enforce any ordinance on the matters
covered by this code unless expressly authorized therein."
To the extent that it occupies certain fields of law, such as traffic regulation and control, the Vehicle
Code preempts local legislative action. (See Rumford v. City of Berkeley (1982) 31 Cal. 3d 545, 551;
City of Lafayette v. County of Contra Costa (1979) 91 Cal. App. 3d 749, 755-756; 73
Ops.Cal.Atty.Gen. 13, 14, supra.) As we stated in 30 Ops.Cal.Atty.Gen. 69, 71 (1957): ". . . . the
Vehicle Code is composed of several fields of law, and the problem becomes to determine with
respect to each field whether the Legislature intended to fully occupy that field. . . ."
We have examined the statutes of the Vehicle Code in some detail. (See, e.g., §§
21950-21969.) The closest provisions we have found to the regulation of basketball standards
installed in the public right-of-way are section 21967 [a local authority may adopt rules and
regulations by ordinance or resolution prohibiting or restricting persons from riding or propelling
non-motorized skateboards on highways, sidewalks or roadways], section 21968 [no motorized
skateboards may be propelled on highways, sidewalks, roadways, trails, or bicycle paths], and
section 21969 [a local authority may adopt rules and regulations by ordinance regulating persons
engaged in rollerskating on a highway, sidewalk, or roadway]. None of these address the
recreational street activity of the type with which we are concerned.
In Amezcua v. City of Pomona (1985) 170 Cal. App. 3d 305, the court upheld an
ordinance which regulated motor vehicles parked on city streets selling merchandise or food and
which prohibited nonmotorized pushcarts. The court stated that the ordinance "is primarily
concerned with the safety of all the users of the city streets and sidewalks" and was not preempted
by the Vehicle Code, since it was "not addressing the regulation of vehicular traffic." (Id., at p.
311.) The court noted that "the Vehicle Code is silent regarding the type of pushcart involved in this
case." (It., at p. 311, fn. 6.)
1
All section references hereafter to the Vehicle Code are by section number only.
2. 92-1004
At most, we believe that the regulation of basketball standards installed in the public
right-of-way is not precluded by the Vehicle Code, since such regulation would only affect
incidentally the code's preempted fields of traffic control and safety. (See People v. Mueller (1970)
8 Cal. App. 3d 949, 954 [state preemption of a field of law would not preclude local legislation
enacted for the public safety which only incidentally affects the preempted field]; 75
Ops.Cal.Atty.Gen. 239, 244 (1992); see also Birkenfeld v. City of Berkeley, supra, 17 Cal. 3d 129,
141-142.)
Turning to the issue of whether the proposed ordinance would constitute a reasonable
exercise of the city's police power, we first observe the applicable standard of review for police
power ordinances set forth in Ratkovich v. City of San Bruno (1966) 245 Cal. App. 2d 870, 878-879:
"We said in Rhain v. City of Palo Alto (1962) 207 Cal. App. 2d 173, 186:
"Where it is urged that a municipal ordinance does not constitute a proper exercise
of the police power, the inquiry of the court is limited to determining (1) whether the
object of the ordinance is one for which the police power may be properly invoked
and, if so, (2) whether the ordinance bears a reasonable and substantial relation to the
object sought to be attained.' [Citations.] In the exercise of its police power a
legislative body is vested with a broad discretion to determine not only what the
public interests require but what measures are necessary for the protection of such
interests. [Citations.] Every intendment is to be indulged in by the courts in favor
of the validity of its exercise. [Citations.]
"The determination by the legislative body of the facts warranting its action
will not be set aside or disregarded by the courts unless the legislative decision is
clearly and palpably wrong and such error appears beyond a rational doubt from facts
or evidence which cannot be controverted. [Citations.] The courts will not nullify
laws enacted under the police power unless they are manifestly unreasonable,
arbitrary or capricious, having no real or substantial relation to the public health,
safety, morals or general welfare. [Citations.] A court is not concerned with the
wisdom or policy of the law and cannot substitute its judgment for that of the
legislative body if there is any reasonable justification for the latter's action.
[Citations.] If reasonable minds might differ as to the reasonableness of the
ordinance [citations] or if the reasonableness of the ordinance is fairly debatable
[citations], the ordinance must be upheld. As the court said in Lockard: `In
considering the scope or nature of appellate review in a case of this type we must
keep in mind the fact that the courts are examining the act of a coordinate branch of
the government--the legislative--in a field in which it has paramount authority, and
not reviewing the decision of a lower tribunal or of a fact-finding body. Courts have
nothing to do with the wisdom of laws or regulations, and the legislative power must
be upheld unless manifestly abused so as to infringe on constitutional guaranties.'
(33 Cal. 2d 453, 461.)"
Accordingly, a city council has broad discretion to determine what is reasonable in fashioning a
permit system under its police power to promote the public health, safety, and welfare. (See
Amezcua v. City of Pomona, supra, 170 Cal. App. 3d 305, 309-310; Barenfeld v. City of Los Angeles
(1984) 162 Cal. App. 3d 1035, 1040; O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal. App. 3d
151, 158; Carlin v. City of Palm Springs (1971) 14 Cal. App. 3d 706, 711-712; McMahan's Furniture
Co. v. City of Pacific Grove (1963) 219 Cal. App. 3d 732, 734-736.)
With respect to the rights and duties of the residents in question, the residents would
have legal title to the right-of-way between the sidewalk and curb and would be responsible for its
3. 92-1004
maintenance. (See Civ. Code, § 831; Sts. & Hy. Code, § 5610; Williams v. Foster (1989) 216
Cal. App. 3d 510, 515-522; Jones v. Deeter (1984) 152 Cal. App. 3d 798, 801-803; Moeller v. Fleming
(1982) 136 Cal. App. 3d 241, 244-245; Low v. City of Sacramento (1970) 7 Cal. App. 3d 826, 829-830,
834.) As stated in Abar v. Rogers (1972) 23 Cal. App. 3d 506, 512:
"As the owner of the fee to the street's center, the abutting owner may make
any use of the street consistent with the public right. [Citations.] It is said that
subject to the public easement, he may exercise all `rights of dominion over his land'
[citation], and he is entitled to `all profit or advantage which may be derived
therefrom' [citation]."
The residents may make use of their landscaped strip of land between the sidewalk and curb in any
manner "not inconsistent with the public easement." (City of Berkeley v. Gordon (1968) 264
Cal. App. 2d 461, 466; see People ex rel. Dept. of Pub. Wks. v. Presley (1966) 239 Cal. App. 2d 309,
312; People v. Henderson (1948) 85 Cal. App. 2d 653, 656.)
On the other hand, "[l]egislation requiring that a permit be issued by a municipality
as a condition precedent to the erection of a structure on property privately owned, or to the use that
may be made of such property, if reasonable, is a valid exercise of the police power. [Citations.]"
(O'Hagen v. Board of Zoning Adjustment, supra, 19 Cal. App. 3d 151, 158.) Moreover, the "people
as a whole have a paramount right to use the public streets wherever located, such right being
superior to any right of a portion of the general public to any use of the street inconsistent
therewith." (City of Los Angeles Metropolitan Water Dist. (1981) 115 Cal. App. 3d 169, 173; see
Airways Water Co. v. County of L.A. (1951) 106 Cal. App. 2d 787, 790.) "The public entity owns .
. . an easement for travel by the public." (Abar v. Rogers, supra, 23 Cal. App. 3d 506, 511.)
While these general principles are easily stated, their application in particular
situations may be more challenging. Based upon our review of the relevant cases, we agree with the
following observation contained in I0A McQuillin, Municipal Corporations (3d ed. 1990) section
30.74, page 430:
"Obviously no absolute rule can be stated concerning what encroachments
or obstructions can or should be permitted by the municipality. What the
municipality is authorized to permit is to be determined mainly by the proper
construction of the applicable local laws. Apart from such consideration, what the
municipality should permit is to be ascertained from the viewpoint of the public
interest having regard to the local conditions. The final question is: Are the
obstructions or encroachments involved unreasonable and against the public rights
and general welfare?" (Fns. omitted.)
The nature and extent of the encroachment is decisive in determining the question of reasonableness.
(See Calder v. City etc. of San Francisco (1942) 50 Cal. App. 2d 837, 840.)
Clearly not all obstructions in the public right-of-way are undesirable and subject to
total prohibition. In the area between the sidewalks and curbs of many cities in California may be
found mail boxes, fire hydrants, trees, telephone poles, cable television wires, bicycle racks, trash
receptacles, bus stop benches, newspaper racks, parking meters, telephone booths, water fountains,
monuments, and statues and other works of art. (See People v. Amdur (1954) 123 Cal. App. Supp. 2d
951, 955-957.) Over streets and sidewalks may be found theatre marquees and various types of lines
and wires, among other encroachments. (See I0A McQuillin, supra, at pp. 344-413.)
4. 92-1004
We note that counties have express statutory authority to establish a permit system
for encroachments in the public right-of-way. (Sts. & Hy. Code, §§1460-1470.) Similarly, we
believe that a city may exercise its police power authority to establish a permit system for the
installation of basketball standards between the sidewalks and curbs of residential neighborhoods.
The proposed installations would not obstruct the right of travel or affect the safety of the traveling
public when not is use. A city may control the public right-of-way by reasonably regulating the
installation of obstructions consistent with the right to travel. (See Abar v. Rogers, supra, 23
Cal. App. 3d 506, 512; Carlin v. City of Palm Springs, supra, 14 Cal. App. 3d 706, 712; City of
Berkeley v. Gordon, supra, 264 Cal. App. 2d 461, 464-467; People ex rel. Dept. of Pub. Wks. v.
Presley, supra, 239 Cal. App. 2d 309, 315-316; McMahan's Furniture Co. v. City of Pacific Grove,
supra, 219 Cal. App. 2d 732, 734-736; People v. Henderson, supra, 85 Cal. App. 2d 653, 658-659;
Laura Vincent Co. v. City of Selma (1941) 43 Cal. App. 2d 473, 476; People v. Amdur, supra, 123
Cal. App. Supp. 2d 951, 959-964.)
The activity of playing basketball on the city's residential streets presents related but
differing considerations. Such activity would occur only occasionally but conceivably could affect
at times the safety of the traveling public. Increased neighborhood noise, injuries to players, and
property damage would be additional factors to be evaluated by the city council in exercising the
city's police power to promote the health, safety, and welfare of the public.
Residential streets are typically used for a variety of recreational activities unrelated
to "travel." Children riding their bicycles in circles, playing hopscotch, throwing footballs,
baseballs, and frisbees, and flying kites may be viewed on a normal day in many towns and cities
throughout the state. The regulation of walking, jogging, skateboarding, rollerskating, and
rollerblading similarly involves legitimate governmental interests in promoting the health, safety,
and welfare of the general public. (See §§ 21954, 21961, 21967-21969.)
We view the playing of basketball on residential streets as simply another type of
activity that may be regulated or prohibited to protect the public's safety and right to travel. (See
Amezcua v. City of Pomona, supra, 170 Cal. App. 3d 305, 310-311 [regulation of vendors parked on
city streets upheld; "The city's concern for the safety of the city street and sidewalk user as well as
the pushcart operator is addressed by this ordinance"]; San Francisco Street Artists Guild v. Scott
(1976) 37 Cal. App. 3d 667, 674 [licensing of street peddlers upheld; "Municipal authorities, as
trustees for the public, have the duty to keep their communities' streets open and available for
movement of the public and property, the prime purpose to which streets are dedicated"]; In re
Bodkin (1948) 86 Cal. App. 2d 208, 209-213 [city ordinance prohibiting crowds from obstructing
streets or sidewalks upheld; "a municipality may `enact and enforce reasonable regulations for the
control of traffic and the use of the streets'"].)
Finally, we observe that the issue of the liability of the city and of the residents for
personal injuries or property damage incurred by the playing of basketball on the city's streets under
the proposed ordinance is beyond the scope of this opinion.
In answer to the question presented, we conclude that a city may authorize its
residents to install basketball standards in the public right-of-way between the sidewalks and street
curbs of residential neighborhoods so that the backboards face the streets and extend beyond the
curbs, provided that the safety and convenience of the traveling public are protected.
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5. 92-1004