PLACERVILLE, CALIFORNIA
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JEROME PASTO stands on a bridge over the Cosumnes River that provides access to a winery, but cannot support large trucks. Democrat photo by Pat Dollins

News

Road zone of benefit protester reaches dead end

By From page A1 | July 23, 2014

Jerry Pasto and his neighbors have a problem.

They want the county to take something off their hands that the county really doesn’t want — namely a few roads.

A story that spans more than 25 years, since 1988 Pasto and his neighbors have been paying into a Zone Of Benefit (ZOB) that maintains six and a half miles of roads in River Pines Estates, a development in Mt. Aukum.

The ZOB includes parts of Bertone Drive, Flat Creek Drive, Jessica Court, Rabbit Ridge, Squirrel Hollow and D’Agostini Drive.

Assessed $275 a year each, the 93 parcel owners in River Pines collectively pay around $26,000 annually towards road maintenance. It’s not a particularly large assessment, but it’s a sore spot nonetheless because residents of the adjacent Twin Rivers Vineyards development aren’t part of the ZOB, yet can also use the roads because they are deemed public.

Pasto said the problem dates back to 1987-88, when Mario Bertone, the general partner of River Pines Estates, made an irrevocable offer of dedication of the roads to the county as part of the subdivision process. With the offer came acknowledgement that if the county rejected it, either a ZOB would have to be formed or the property owners would individually be responsible for maintaining the roads.

Pasto said that after Bertone complied with the county’s request, which he contends Bertone was strong-armed into doing, the county rejected the offer of dedication when it approved the final subdivision map in 1988. Subsequently a ZOB was authorized by the Board of Supervisors that included River Pines residents only.

Around the same time, Bertone gave the owner of Twin Rivers Vineyards a non-exclusive easement and right of way ingress and egress to the development. A set of covenants, conditions and restrictions (CC&Rs) for River Pines followed which, among other things, prohibited commercial trucks from operating within the development.

Those commercial trucks have become a growing irritant to Pasto and other residents over the years as he claims they primarily serve the vineyards and other agriculture-related businesses in Twin Rivers while adding to the general wear and tear on the roads.

Pasto says Upton Road was supposed to be the access point for Twin Rivers but it is seldom used as it’s little more than a one-lane dirt road. Its use is further hampered because access to Twin Rivers on Upton requires crossing the Cosumnes River on a privately owned non-rated bridge. Thus all the traffic for both developments ends up on the roads maintained by the residents of River Pines.

However, the residents of Twin Rivers have not totally ignored the ZOB issue and have contributed some money towards road maintenance, although nowhere near what the residents of River Pines have paid.

According to Elizabeth Zangari, an analyst for the El Dorado County Community Development Agency, between 2001 and 2008, residents of Twin Rivers donated $8,650 to the ZOB. Of that amount, $825 came from one of Pasto’s neighbors, Chaim Gur-Arieh, who owns C.G. Di Arie Vineyards & Winery.

“I’m all for an assessment district or for having the county take over responsibility for maintaining the roads,” said Gur-Arieh. “They should. When I built my winery, I paid $50,000 for road improvements. I was also willing to pay my fair share of maintaining the roads.”

Gur-Arieh said in the last 10 years or so he has offered different solutions to the problem of road maintenance, including asking Pasto to come up with a formula for contributions to the ZOB. He also suggested Twin Rivers be annexed into the River Pines ZOB, while leaving some of the roads out, or simply asking for contributions with the option of discontinuing the contribution at any time.

However, nothing came of those suggestions, he said. In the meantime, Pasto has pursued the matter separately with the county with the determination of a bulldog that won’t let go.

Fighting the ZOB

Zangari is one person who can attest to Pasto’s tenacity, saying her department has had voluminous correspondence with him over the years on the topic of the ZOB.

But she pointed out that residents of River Pines are not the only ones paying into one.

According to her, the county currently has 108 zones of benefit for all kinds of things, including roads, drainage, snow removal, lighting, library services, ambulance service, cemeteries and the like. Of the 108, 32 are just for roads and 12 are for roads and drainage.

Zangari said the county’s rejection of Bertone’s offer of dedication was not all that unusual either, especially when it happened. “Beginning in 1983 until the early 1990s, road maintenance zones of benefit were a favored method of funding maintenance of roads that were not included in the county’s Maintained Mileage System,” she said.

Such an approach allowed developers to move forward with their projects at a time when the county couldn’t or didn’t want to assume the cost of maintaining the roads, she added.

Zangari said Pasto’s complaint about privately paid roads being deemed public is also not valid as the ZOB assessment is collected as part of people’s property tax bills and hence the money is considered “public funds” even if their use is restricted to maintenance of River Pines roads.

Previously, Pasto was told that by both staff in the General Services Department and County Counsel.

In a memorandum dated Jan. 2, 2001, from then deputy county counsel Thomas Parker, he wrote, “Public roads, whether they are public because of ZOBs being created or by ‘prescriptive’ easement use, are always available to the public for use. The additional granting of an easement on the same road for the benefit of adjacent properties is not prohibited by law but is a superfluous act, given the public nature of the road.”

Parker went on to write, “Whether or not the easement on the subject properties is valid, the residents of ZOB No. 26 may not restrict the access of residents of the adjacent Twin Rivers Vineyard lots to the ZOB road because of the public nature of that road … Our office, since at least the early 1990s, has consistently opined in writing that the collection of assessments levied by the county through county service renders those roads public in nature. The Board of Supervisors, in 1993, endorsed this legal conclusion in convening a committee of road zone of benefit parties of interest (including key county staff as well as members of local zone of benefit governing committees) to address how the road zones of benefit should be administered. Public roads are open to use by the public, whether or not the traveling party resides within the zone of benefit. Roads may also become ‘public’ in terms of the right of anyone to traverse the road by prescriptive use over a period of time.”

Pasto’s contention that the CC&Rs for River Pines prohibit commercial trucks in the development may also be in doubt as those provisions usually only apply to those in the development itself and not to others using what have been deemed public roads.

In the intervening years, Pasto has taken his complaint to just about every agency in the county including the Board of Supervisors. Finally out of frustration, in 2010 he asked the El Dorado County District Attorney to prosecute the county on the basis that it was improperly taxing residents of River Pines and abusing ZOB laws. When the DA declined, he approached the State Attorney General and asked that office to prosecute the county, which the AG also declined. Undeterred, in 2012 he asked the county Grand Jury to investigate. It responded it had no jurisdiction and suggested a civil suit. Pasto then asked Superior Court Judge Steven Bailey to compel the grand jury to conduct an investigation, but was referred back to the DA. More recently he complained to Sheriff John D’Agostini, but was again referred to consult a private attorney on the matter.

Still upset that he and other residents in River Pines are paying for the roads, Pasto maintains that one of two things should have happened. “Either they (Twin Rivers) should have been annexed into the benefit district, or at this point, the county should accept the irrevocable offer of dedication, make them public roads and maintain them,” he said.

But with the county not in any rush to take the roads off their hands and lacking the financial resources to pursue it in court, it appears the residents of River Pines are stuck with the ZOB and neighboring traffic for now.

Contact Dawn Hodson at 530-344-5071 or [email protected] Follow @DHodsonMtDemo on Twitter.

Dawn Hodson

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