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The Alto Tunnel Pipe Dream
Talk of reconstructing the Alto Tunnel between Mill Valley and Corte Madera for use as a north/sound multi-use route surfaced nearly 30 years ago, which prompted me to begin to thoroughly research the public record and the various deeds and easement provisions of properties that would be impacted by the proposal.
Putting to use my decades of experience in the commercial real estate business, I came away from that investigation certain that the real estate advisors on the County’s staff were wrong in telling the Marin Board of Supervisors that the County held “all the rights required” to access the Tunnel and convert it into a new multi-use route.
Over the past two decades, I’ve brought this to the attention of County staff, the Marin Board of Supervisors, the Town Council of Corte Madera, the Mill Valley City Council, and the Marin County Bicycle Coalition (MCBC) numerous times, in writing and in testimony at public hearings. The Supervisors and Councilmembers seemed to understand the issues, but until County staff finally acknowledged their error in 2017, they tried to ignore or downplay the facts and circumstances regarding the lack of “perfected rights” to access the Tunnel from either the Mill Valley side or the Corte Madera side.
The reactions of MCBC reps and Tunnel supporters varied from denial to personal attacks on me and the property owners who actually hold those rights.
The use of former railroad rights-of-way in Marin and Sonoma are highly restricted
In March of 2021, the Marin IJ published an article about a lawsuit filed against the Marin Sonoma Area Rail Transit agency (SMART), regarding their plans to convert portions of the railroad right-of-way to multi-use paths.
Among other things, the IJ noted,
“Nearly 50 Sonoma County residents and businesses filed the case this month in U.S. District Court of Northern California, alleging the transit agency lacked the authority in its easements to build the path along the railroad right of way through their properties. One of their attorneys, Tom Stewart, said SMART’s easement is only allowed for railroad purposes and not for a path. By building the path, SMART is illegally taking the property from these residents without compensation and is therefore violating their Fifth Amendment rights, Stewart said.” [Emphasis added]
The attorney, in this case, is referring to the restrictions found in the various property easements and rights of way that SMART’s planners failed to recognize or acknowledge, which specifically preclude them from using the former railroad right-of-way for any use other than for railroad operations. In this case, a great deal is at stake. As the IJ noted,
“The construction of a bicycle and pedestrian path along the rail corridor was a major selling point to Marin and Sonoma voters in 2008 to pass the quarter-cent sales tax that funds the system.”
If the plaintiffs in this case prevail, SMART may have already incorrectly appropriated a significant amount of public funding based on an inaccurate reading of their access rights. Accordingly, it would be inappropriate for the Board of Supervisors to spend any more time or money on the proposal to reconstruct the Alto Tunnel before resolving the various access issues along that route.
Some Alto Tunnel backstory
The Alto Tunnel was part of a former railroad route that started at the docks in Sausalito and hauled freight north into Sonoma County and beyond. Remnants of that old route still exist today, but both ends of the Tunnel were sealed in 1971, and in 1982, both entrances were filled with concrete and compacted gravel for a total of about 1/3 of the Tunnel’s nearly half-mile length.
These actions, aimed at stabilizing the Tunnel’s entrances over which homes were constructed following the cessation of rail traffic when coupled with the collapse of its interior sections, made its entire length inaccessible without, in effect, a new bore. In 1981, the railroad use of the Tunnel was declared abandoned by the Southern Pacific Land Company, successor in interest to the Northwestern Pacific Railroad Company.
Note that the term “abandoned” is key to the questions surrounding the County’s right to use the Alto Tunnel for any purpose other than railroading. In Marin, other remnants of that original railroad route are now used for biking/pedestrian paths running south on the Mill Valley side, through portions of Corte Madera and Larkspur, and for the SMART train going north from Larkspur Landing.
The Marin County Bicycle Coalition’s campaign to encourage the County to reconstruct the Tunnel to create a new, north-south bicycle connector route seems simple. However, for starters, it ignores the enormous cost of such an undertaking.
The tunnel collapsed in the 1970s and its structural integrity is compromised, according to the most recent study in 2017, which involved lowering cameras into the Tunnel’s midsection. At a minimum, a reconstruction would require a complete rebuilding of its internal support and seismic safety system, in addition to the cost of revamping the Tunnel’s entrances and modernizing its electronic systems, lighting, and emergency access features.
In 2009, County staff estimated the cost to reconstruct the Tunnel at approximately $60 million. In 2017, after the referenced study of the Tunnel’s collapsed interior was completed, the estimate was revised to come up with approximately the same cost; however, in order to do so, the County’s consultant devised a new plan based on shrinking the width of the bore from the Tunnel’s original 16-foot width to 12 feet, which is simply too narrow for safe two-way traffic for bicycles and pedestrians, strollers, etc.
Meanwhile, since then all construction and materials costs have increased dramatically, as anyone who has done any remodeling in recent years can attest. To do a proper, 16 foot-wide re-bore of the Tunnel today, and to acquire the expired easements, blocking parcels, and homes directly over the portals would probably cost in the range of $120-150 million.
Yet the enormous costs involved are only part of the County’s problems.
Back in 1883, just before the tunnel was built, homeowners and landowners on the Mill Valley and the Corte Madera ends of the tunnel granted what was then called the North Pacific Coast Railroad Company easements (rights-of-way) to allow the railroad to access, construct, and operate what we now know as the Alto Tunnel underneath the hillsides that separate Mill Valley from Corte Madera.
The terms and conditions of those original covenants run with the land and are still in full force and effect to this day.
The County lacks the perfected rights to create a Mill Valley to Corte Madera biking path
On the Mill Valley side of the Alto Tunnel (the south side), the county owns a narrow strip of land that is located directly above the buried Tunnel below, running from the east side of Camino Alto Avenue at the top of the ridge dividing Mill Valley from Corte Madera and all the way south to the north side of Underhill Road in Mill Valley. A privately-owned parcel, with an expensive single-family home immediately adjacent to the Tunnel’s south entrance, blocks the access. (See map, below)
On the Corte Madera side, there are 6 single-family homes with expired easements above the Tunnel’s entrance path, beginning at the intersection of Stetson Avenue and Buida Court and running south to the Tunnel’s north entrance. (See map, below)
Since it acquired the railroad’s parcels and rights in the 1970s, Marin County has been mistakenly relying on the belief that they retain the right to use the former railroad right-of-way through the Alto Tunnel for any use they choose. But much like the SMART lawsuit noted above, that is simply not the case.
On the Mill Valley side and the Corte Madera side, the current homeowners and landowners hold all rights to the use of their properties at both ends of the Tunnel, due to one glaring fact; the wording of the original and still binding right-of-way easements granted to the railroad company by the property owners, which allowed the railroad company owners to access the Tunnel and conduct their operations through private property on the north and south ends, specifically state that the rights being granted are only valid.
“…provided also that the lands so conveyed shall be used for the purpose of a right of way for said Railroad and for no other purpose, and if not so used and the Railroad maintained, then this agreement shall be null and void.” [Emphasis added]
In other words, the right of way was granted for railroad purposes, only; therefore, the easements that allowed for any access to the Tunnel entrances, across the privately-owned parcels of land on the north and south ends, were extinguished and no longer exist after the railroad use was abandoned and was “not so used… and maintained.”
Note further that the railroad company did, in fact, abandon the Alto Tunnel for railroad use in 1971. Just one example of evidence of this abandonment was memorialized in a letter to Robert A. Middagh, Marin’s Chief Real Property Agent, dated March 17, 1981, from the Southern Pacific Land Company regarding the County obtaining an option to purchase the narrow parcels of land on the hillsides separating Mill Valley from Corte Madera, above the existing Tunnel.
That letter repeatedly states that the terms of the option are
“relating to the abandoned tunnel between Mill Valley and Corte Madera” [Emphasis added]
And that
“The tunnel was originally constructed in 1884 until it was abandoned in 1971. (By the Southern Pacific Land Company’s predecessor, the Northwestern Pacific Railroad Company.) [Emphasis added]
Accordingly, the access easements over the private parcels referenced above, just like the ones in the referenced lawsuit against SMART, expired when railroad uses were abandoned, at which time all rights reverted to the property owners. I have copies of the referenced easements and the letter by the railroad agency acknowledging its abandonment of the railroad uses (and thus the easements) and gave a set to County staff in 2009 when they began to study the easement issues I raised.
While the County certainly could attempt to take property easements under eminent domain, if successful, they would have to pay dearly for them. In addition, the cities of Mill Valley and Corte Madera would have to either assist or stand aside for the taking, and the taking itself would certainly result in costly litigation.
In particular, on the Mill Valley side, the County would have to take the entire blocking parcel and purchase the large home above the south portal; on the Corte Madera side, they would have to take the easements from 5 homes built after the railroad’s formal abandonment, as well as purchase the home on the 6th parcel, which sits immediately above the north portal.
Even if insurance were available for such an undertaking, it is inconceivable that any agency would want to take on the costs and risk of reconstructing the Tunnel immediately beneath either of the homes above the portals of the tunnel with people in residence. Further, the taking of private property required for Tunnel access, such that the reconstruction project could even be considered, could easily run to ten million dollars, not counting the actual costs of the reconstruction itself.
In its 2010 study on the issue, County staff finally took the first steps toward acknowledging their error and budgeted a total of $1.5 million for acquiring the easements, a grossly inadequate amount that today wouldn’t cover the cost of purchasing just one of the homes that would have to be taken.
Finally, the County should consider adopting Mill Valley Resolution 00-36, signed by then-Mayor Dennis Fisco in 2000. This document laid out the City’s requests for issues the Council wanted to be studied before making any decisions about the Tunnel. To date, it remains the City’s official position on the Alto Tunnel, as it has not been rescinded or revised, nor have most of its requests ever been addressed.