Legality of someone building a bridge on your own land?

[Jake]

I found an interesting situation on reddit recently and I think it's the perfect scenario to share here. The reddit post can be viewed here - r/HomeOwners

The post is about a homeowner who is dealing with unpermitted work that is happening on his own property. A neighbor is building a bridge over a seasonal creek that sits on his own property. He has reached out to the county about it, and they initially issued a stop work notice afterwards, but then later allowed the work to continue on and went as far as to close the violation. Of course, no permits were issued or obtained for said work. This is not the first time there was a bridge there. The original bridge was removed after someone fell through the bridge. It resulted in the original homeowner being sued as a result. It seems the new homeowner does not want to repeat the same problems.

The kicker, is that structural engineers have labeled the new bridge unsafe, yet the county is allowing it to go unabated. This has resulted in the property owner having to escalate the issue.

With that all being said, what would you do in this situation? Would you look into lawyering up? What advice would you offer someone in this predicament?

 

[Winny]

In these types of situations, especially if the person building the bridge is not stopping, it's probably the best time to consult a real estate and land use attorney. They will be the best option going forward, considering the person is not stopping the work. A lawyer like this could help with advice, represent your interests and help navigate the many local laws to make sure you're 100% protected.

You should also document everything they neighbor is doing. This includes keeping track of communications, like emails, notices from the county and any reports indicating the bridge is unsafe. Documentation is key to stopping this work in its track as well to keep you safe from any possible lawsuits or legal action. You want to build a strong case.

If the county is unresponsive, keep on them. Keep escalating the situation, keep contacting them. Bug them until they have to respond. if you continue to have issues there, contacting higher-level officials or other departments might be the necessary route to go. Public safety concerns are a big thing, especially if the reports come back that the structure is unsafe. This can result in more decisive action from authorities as well.

I can't imagine what it might be like to deal with neighbors like this, especially if they're building upon your property.

 

[Jake]

Thanks for the fast response. I hope I never have to deal with neighbors like that person is dealing with. I really think his best option, is to get lawyers involved and stop the process as soon as possible, because I don't think the state or city is going to move fast enough on this.

 

[Eric]

That Reddit thread got quite a bit of attention with lots of people weighing in. I agree with what you said, @Winny, along with others who responded in that thread, about the OP's need for a lawyer above all else. It's important to note that the neighbor built the bridge through an easement area in which the neighbor has access rights. Because the bridge is in the neighbor's easement and the neighbor constructed it, I'm having a hard time understanding why the previous property owner was successfully sued by the person who fell through the bridge and got hurt. Liability seems like it should have been squarely with the neighbor in that case.

One commenter mentioned that the OP could also consider inquiring with the California Department of Fish and Wildlife (CDFW) about whether the bridge represents a violation under their jurisdiction. I think there's real merit to this suggestion. If construction of the bridge has affected the flow of the creek or in any way changed the creek's bed, channel, or bank (or affected the riparian area at all for that matter), then the neighbor should have obtained a Lake and Streambed Alteration Agreement from CDFW. If there were effects to the creek, the OP may also want to inquire with their Regional Water Quality Control Board about whether Waste Discharge Requirements should have been issued for the work.

On a complete sidenote, I did find it odd that the OP didn't respond to any of the comments they received. I feel like that's kind of a faux pau when you're inquiring about something like this on a forum and receiving feedback from people. I guess they must have their hands full with this bridge situation .

 

[Jake]

That Reddit thread got quite a bit of attention with lots of people weighing in. I agree with what you said, @Winny, along with others who responded in that thread, about the OP's need for a lawyer above all else. It's important to note that the neighbor built the bridge through an easement area in which the neighbor has access rights. Because the bridge is in the neighbor's easement and the neighbor constructed it, I'm having a hard time understanding why the previous property owner was successfully sued by the person who fell through the bridge and got hurt. Liability seems like it should have been squarely with the neighbor in that case.

One commenter mentioned that the OP could also consider inquiring with the California Department of Fish and Wildlife (CDFW) about whether the bridge represents a violation under their jurisdiction. I think there's real merit to this suggestion. If construction of the bridge has affected the flow of the creek or in any way changed the creek's bed, channel, or bank (or affected the riparian area at all for that matter), then the neighbor should have obtained a Lake and Streambed Alteration Agreement from CDFW. If there were effects to the creek, the OP may also want to inquire with their Regional Water Quality Control Board about whether Waste Discharge Requirements should have been issued for the work.

On a complete sidenote, I did find it odd that the OP didn't respond to any of the comments they received. I feel like that's kind of a faux pau when you're inquiring about something like this on a forum and receiving feedback from people. I guess they must have their hands full with this bridge situation .

Yeah I didn't even think of that. The neighbor should have originally been liable if so. Unless the first bridge was co-built by the neighbor and the previous owner maybe? Calling the CDFW sounds like a good idea too, more options to fight it is always a plus in my book.

And yeah, same here. Hopefully he has taken the many answers he received into consideration and is getting himself a lawyer and reaching out to people that could help, like the CDFW in this case. But yeah, maybe he is busy getting things started. Maybe he will provide an update post on what's going on since.

 

[SiteConEng]

VERY VERY few real estate attorneys will have much of an idea on what to do. The question is, is the creek designated as waters of the US (WOUS)? why did a structural engineer designate the bridge as unsafe? Who paid them to assess the bridge? My first move would be to hire an environmental scientist that deals the USACE - they are the primary regulatory body that has teeth of the federal gov't. They regulate every crossing over WOUS (in, over, or under). That individual also would know the State Permits that might be required. They should be able to layout the best means to move forward.

I have dealt with and helped as a SME environmental attorneys and land use attorneys in the past. They rely entirely on SME's (subject matter experts) which they are not.

 

[Eric]

VERY VERY few real estate attorneys will have much of an idea on what to do. The question is, is the creek designated as waters of the US (WOUS)? why did a structural engineer designate the bridge as unsafe? Who paid them to assess the bridge? My first move would be to hire an environmental scientist that deals the USACE - they are the primary regulatory body that has teeth of the federal gov't. They regulate every crossing over WOUS (in, over, or under). That individual also would know the State Permits that might be required. They should be able to layout the best means to move forward.

I have dealt with and helped as a SME environmental attorneys and land use attorneys in the past. They rely entirely on SME's (subject matter experts) which they are not.

Great point, @SiteConEng. I'm a USACE regulator so my first thought was also whether the creek might be a WOUS. However, I think there's a strong possibility it's not Corps-regulated two reasons:

1) The creek is described as "seasonal," which probably means "intermittent" and "relatively permanent" (see this recent post) but possibly not. If the creek is actually ephemeral (i.e., flows "for only a short duration in direct response to precipitation"), then it wouldn't be Corps-regulated per last year's Sackett decision and Amended 2023 Rule. As I mentioned above, out of all the potential California agencies to take jurisdiction, the California Department of Fish and Wildlife (CDFW) is the most likely candidate since they would regulate not just dredge/fill activities associated with construction of the bridge (which Corps and RWQCB would also regulate) but also any modifications to the riparian buffer surrounding the creek. It's very possible the neighbor was able to construct the bridge without affecting the creek's bed and bank (smart move in California), but it would have been more difficult to avoid disturbing surrounding riparian vegetation if any sort of bridge approach/path was needed. In other words, I think there's a strong chance the neighbor triggered CDFW requirements but whether Corps/RWQCB requirements were triggered is much less certain.

2) Corps jurisdiction under Section 404 of the Clean Water Act doesn't include bridges that span the Ordinary High Water Mark, or only include piles placed in, Section 404 waters. You mentioned the Corps regulates "every crossing over WOUS (in, over, or under)" but the "over" and "under" part is only true for waters regulated under Section 10 of the Rivers and Harbors Act. Section 10 waters are generally limited to tidal waters and wouldn't include the seasonal creek we're talking about here. If the bridge was constructed to go over the creek, not in it, then a Corps permit probably wouldn't be needed.

 

[SiteConEng]

Great point, @SiteConEng. I'm a USACE regulator so my first thought was also whether the creek might be a WOUS. However, I think there's a strong possibility it's not Corps-regulated two reasons:

1) The creek is described as "seasonal," which probably means "intermittent" and "relatively permanent" (see this recent post) but possibly not. If the creek is actually ephemeral (i.e., flows "for only a short duration in direct response to precipitation"), then it wouldn't be Corps-regulated per last year's Sackett decision and Amended 2023 Rule. As I mentioned above, out of all the potential California agencies to take jurisdiction, the California Department of Fish and Wildlife (CDFW) is the most likely candidate since they would regulate not just dredge/fill activities associated with construction of the bridge (which Corps and RWQCB would also regulate) but also any modifications to the riparian buffer surrounding the creek. It's very possible the neighbor was able to construct the bridge without affecting the creek's bed and bank (smart move in California), but it would have been more difficult to avoid disturbing surrounding riparian vegetation if any sort of bridge approach/path was needed. In other words, I think there's a strong chance the neighbor triggered CDFW requirements but whether Corps/RWQCB requirements were triggered is much less certain.

2) Corps jurisdiction under Section 404 of the Clean Water Act doesn't include bridges that span the Ordinary High Water Mark, or only include piles placed in, Section 404 waters. You mentioned the Corps regulates "every crossing over WOUS (in, over, or under)" but the "over" and "under" part is only true for waters regulated under Section 10 of the Rivers and Harbors Act. Section 10 waters are generally limited to tidal waters and wouldn't include the seasonal creek we're talking about here. If the bridge was constructed to go over the creek, not in it, then a Corps permit probably wouldn't be needed.

Great points - Right back at ya and thanks for the specifics! As a licensed engineer, my advice is ALWAYS to attain a JD or PJD during early planning stages of any construction project and, yeah - I know the world has changed since the SCOTUS decision (what? 18-mo or so ago?) They stopped specifying "significant nexus" in the 2008? Rapano Decision; but defined it specifically in the case you mentioned (word on the street is USACE isn't processing permits yet - while it finishes up its new rules?). Still; I am not the expert in such matters but typically, as you so well defined; the environmental scientist will know what inquiry's need to be made and these are prudently done prior to planning a design/project vs once its under construction.

The item I did leave out is potential floodplain issues; not that these are show stoppers; but often contain with them the potential need for H&H studies or at a minimum public notice for work in a floodplain as well as possible approval from the jurisdictions flood plain manager.

 

[Eric]

Great points - Right back at ya and thanks for the specifics! As a licensed engineer, my advice is ALWAYS to attain a JD or PJD during early planning stages of any construction project and, yeah - I know the world has changed since the SCOTUS decision (what? 18-mo or so ago?) They stopped specifying "significant nexus" in the 2008? Rapano Decision; but defined it specifically in the case you mentioned (word on the street is USACE isn't processing permits yet - while it finishes up its new rules?). Still; I am not the expert in such matters but typically, as you so well defined; the environmental scientist will know what inquiry's need to be made and these are prudently done prior to planning a design/project vs once its under construction.

I know a lot of people like requesting AJDs/PJDs and consider them to be good due diligence, like what you described. What you need to keep in mind, though, is that AJDs are really only meaningful to the permit process if the AJD is being used to exclude a feature from jurisdiction (e.g., non-RPWs under the Amended 2023 Rule). An AJD might also be necessary if there's disagreement between the applicant and Corps on the extent of jurisdiction or in an enforcement case. For all other scenarios where the applicant and Corps are in agreement on the results of a delineation and everyone just wants to focus on the permitting (99% of cases), an AJD is a complete waste of time.

What you should instead request is a "delineation-only verification," also known as a "delineation concurrence" (the "No JD Whatsoever" option under RGL 16-01). The Corps will review your delineation report and simply respond via email to request changes (e.g., additional sampling points) or indicate their concurrence that the delineation is technically adequate. And that's it! After the Corps has verified your delineation report, you're done with the jurisdiction part of the process. There are no JD forms to complete or letters to wait for the Corps to issue. As for PJDs, it's mindboggling that they even exist considering that delineation-only verifications are an option.

Bottom line: AJDs are definitely useful for documenting exclusions but beyond that often serve as unnecessary paperwork that doesn't add anything meaningful to the process. I highly recommend you focus your discussions with Corps regulators on obtaining delineation-only verifications and try to limit the time you spend spinning your wheels on the AJD/PJD route.

The item I did leave out is potential floodplain issues; not that these are show stoppers; but often contain with them the potential need for H&H studies or at a minimum public notice for work in a floodplain as well as possible approval from the jurisdictions flood plain manager.

Yes, absolutely. Floodplain management is generally the purview of local zoning, right? It's interesting because although the Corps regulates work in waterways, we don't coordinate directly with those sorts of local authorities. The creek in question is described as seasonal, so is probably a first- or second-order stream located higher up in the watershed. I wouldn't think floodplain issues would come into play, but really don't know.