City wants to start building more trails, raising liability issues

PORTLAND TRIBUNE FILE PHOTO - A fight over volunteer-built stairs in this undeveloped right of way off Southwest Sunset Boulevard in 2008 prompted the city to curtail trail building work for years.Portlanders have been walking along a network of trails throughout the southwest part of the city for many years. Many trails are well marked with signs, providing connections in a hilly part of town where few streets have sidewalks. Some are even part of the Safe Routes to School system used by public school students every school year.

But, as it turns out, none of the trails are official. Although most are on unimproved rights of way owned by the Portland Bureau of Transportation, no permits were ever issued to ensure they were built to city standards. They were largely built by volunteers on their own time.

Because of that, adjacent property owners are liable if anyone is hurt using them — even if the owners don’t know their property is next to a trail. Legal liability extends to the center line of such rights of way.

After news of that broke in 2008, Portland's Bureau of Transportation prohibited most work on new trails on its property. Seven years later, PBOT officials have presented the City Council with a proposal for restarting the trail-building work. But hardly anyone was pleased with the new Community-Initiated Trails Process when it was first heard on Oct. 14.

The council postponed the next hearing until Nov. 4 in hopes the problems can be worked out. That may prove difficult, however.

Those who support building more trails — including the nonprofit SW Trails group — argue new requirements for securing the approval of most adjacent property owners will allow a handful of opponents to block them.

“It’s a terrible policy,” says Don Baack, head of SW Trails.

But those worried about liability issues complain the plan does nothing to require that the 40 miles of existing trails be brought up to existing standards, when the liability can be shifted to the trail users.

“Many of the existing trails were hazardous when they were built or have not been maintained,” says Elizabeth Duncan, a Southwest Portland resident and attorney who has been fighting a new trail adjacent to her house.

Even those who support the policy have questions about whether trails are the best use for every unimproved right of way. Robert Burgee, who lives next to a proposed trail along an unbuilt portion of Southwest Coronado Street, says some trails are better left unbuilt.

“Trails through undeveloped rights of way, especially on sloped ground, can affect runoff, drainage and loss of vegetation. Does the use of a trail trump the environment?” Burgee wrote the council.

Sara Schooley, the PBOT planner working on the policy, says those are the kinds of issues the policy is intended to address.

“This has been an issue for the community for a long time. We’re trying to create a public process that will allow trails to be constructed correctly, tracked and maintained. Permitting is a big step in the liability discussion. Until a trail is officially a trail, liability doesn’t pass to the user. This policy is a way to address that,” Schooley says.

But Schooley admits there is no simple solution for bringing all existing trails up to city standards, which would help protect adjacent property owners from liability. No one from PBOT has ever walked all of them to see what work they require.

“Ninety percent of them could be fine, but 10 percent could need work. Right now, there is really no one signed up to maintain them,” Schooley says.

Labor of love

The city has long encouraged the construction of walking trails. They are mentioned in the city’s Pedestrian Master Plan, Metro’s Regional Active Transportation Plan, and both the current city Comprehensive Plan and the recommended update the council will consider later this year. In 2000, the council approved a specific plan for trails in Southwest Portland, where many streets do not have sidewalks and the terrain makes adding them difficult. It is called the SW Urban Trails Plan and includes a map of trails that existed at that time and new trails that should be built.

Back then, Baack’s group was a standing committee of Southwest Neighbors Inc., the neighborhood coalition office that serves the neighborhood associations in Southwest Portland. It worked to complete the recommended trails in the 2000 plan and built some on other unimproved rights of ways as well. Many of the trails required stairs, which the group built with sections of railroad ties, sometimes anchored by rebar pounded into the ground.

According to Schooley, no permits were issued for any of the trails Baack’s group built on PBOT property. Baack says he was told no permits were required for trails that were built only with hand tools, however, which is what SW Trails consistently did.

But the group sparked controversy when it built stairs to connect a trail adjacent to Duncan’s house on Southwest Seymore Drive in March 2008. She and her husband, David Barberis, thought the stairs were so steep, walkers could easily fall and hurt themselves. They contacted PBOT, which agreed and had the stairs removed (

Fix still controversial

The incident, first reported by the Portland Tribune on May 21, 2008, shed light on the liability issue. That prompted PBOT to put most trail-building activities on hold in 2009 so the Legislature could consider it. A 2011 state law limited liability for the city, adjacent property owners and nonprofit groups that build trails with city approval in the future.

After the law took effect, PBOT began working on a new policy for approving new trails that have the support of adjacent property owners and other nearby residents. Among other things, it requires a new public approval process for proposed trails not included in an existing transportation plan. Methods include a petition signed by at least 75 percent of adjacent neighbors, a petition signed by at least 50 percent of households within a quarter mile of the proposed trail, or a petition signed by at least 50 percent of adjacent neighbors and a letter for support from the affected neighborhood association.

Baack says the new approval requirements are burdensome. Duncan says they still expose at least some property owners to liability without their permission.

And then there’s the question of the liability facing property owners along existing trails. During the Oct. 14 hearing, Peter Finley Frye, a consultant representing three property owners along Southwest Coronado, submitted a letter from the local Dunn Carney Allen Higgens & Tongue law firm saying the 2011 state law does not actually protect adjacent property owners against liability, even if the trails are built with permits.

“I suspect that most Oregon property owners do not realize that the law presumes that the adjacent fee title holder owns to the centerline of right-of-way. Thus, injuries that occur on these trails will presumably take place on the premises of the adjacent owner,” according to the letter.

Commissioner Nick Fish seemed to agree, saying lawyers will always find ways to test any law. Fish said city officials need to be careful when saying anything that could be construed as giving legal advice about liability issues.

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