Public Street or Private Street: Does the City Have the Authority to Gate a Public Street? Yes and No

Tomorrow, Monday October 17, 2011, the Hollywood United Neighborhood Council Board of Directors is scheduled (.pdf) to consider a motion of opposition to the City Council's recent approval of the temporary closure of Solar Drive. That motion of opposition is "based on the rebuttable presumption that [the street closure] fails to satisfy" Section 21101.4 of the California Vehicle Code and that the street closure violates Section 21101.6 of the California Vehicle Code. As you may recall, the City Council approved (Council File 11-1222) the "temporary" closure of Astral Drive pursuant to CVC Section 21101.4.

First, a quick summary of the pertinent sections of the California Vehicle Code:

• Section 21101 of the California Vehicle Code gives the City the authority to close "any highway to vehicular traffic" when the City Council finds that said highway is "[n]o longer needed for vehicular traffic" and the closure is "in the interests of public safety". CVC Section 21101 also gives the City the authority to prohibit "entry to, or exit from, or both, from any street by means of islands, curbs, traffic barriers, or other roadway design features to implement the circulation element of a general plan."
• Section 21101.4 of the California Vehicle Code gives the City the authority to temporarily close to the public certain types of streets if the City Council finds that "there is serious and continual criminal activity" on the street proposed to be closed and that "vehicular or pedestrian traffic on the highway contributes to the criminal activity." A street or street segment may be closed for 18 months and that 18 month closure is eligible to be extended a maximum of eight times (so the total permitted "temporary" street closure length is 162 months or 13.5 years). CVC Section 21101.4 requires that the City Council's finding "be based upon the recommendation of the police department."
• Section 21101.6 of the California Vehicle Code states that "local authorities may not place gates or other selective devices on any street which deny or restrict the access of certain members of the public to the street, while permitting others unrestricted access to the street." CVC 21101.6 makes clear that this section is intended to "codify the decision of the Court of Appeal in City of Lafayette v. County of Contra Costa (91 Cal. App. 3d 749)." CVC 21101.6 has been operative since 1990.

So, does the City have the authority to gate a public street? Yes, if the purpose of the gate is to close a public street to all vehicular traffic (either temporarily or permanently); No, if the gate restricts certain members of the public access to a public street but allows others (such as the residents of a street) continued access.

Regarding the proposed temporary closure and gating of Astral Drive: Even if you agree that the City has met the "serious and continual criminal activity" standards of CVC 21101.4 (and that is debatable) it is clear that the City's approval of the installation of a gate on Astral Drive is in violation of CVC 21101.6. The language of CVC 21101.6 and the Court of Appeal's decision in City of Lafayette v. County of Contra Costa (91 Cal. App. 3d 749) is clear and unmistakable: The City lacks the authority to "temporarily" close Astral Drive with a gate if that gate permits residents of Astral to have vehicular access the street but prohibits other members of the public that same access.