Dedication/Wavier of Access Rights

[coupleofacres]

I have a question regarding Chapter 4, Article 3. DEDICATIONS, of the SMA that I hope this board can provide some input.

The local agency is requiring the subdivider to provide as a dedication to the public on a final parcel map for condominium purposes , the relinquishment the vehicle access rights to along an existing public street.

Simply, my position is that the only time this (waiver of access rights) can be required of the subdivider is when the subdivider dedicates real property to the public for public purposes for a public street or alley and such streets can, only at that time, include conditions regarding access rights.

The comment from the 1st submittal plan check is to include in the owner’s certificate a recital to satisfy section Chapter 2, Article 3, Section 66447(c) of the SMA and a specific “condition of approvalâ€￾ that states: “Vehicular access rights to XX Street shall be relinquished to the City from this lot. Relinquishment of access right shall be shown on the parcel map.â€￾ I am finding it difficult to conceive that access rights could be placed in the category of a fee right or easement right for public purposes. The local agency has not specified whether this dedication shall be in fee or as an easement and I have not requested this specification at this time.

The local agency’s ordinance mirrors the language of the SMA in this regards and there is no separate or distinct ordinance pertaining to the relinquishment of access rights (local agency’s term in condition of approval).

Thank you all for your anticipated insightful input.

[Ian Wilson]

“The local agency is requiring the subdivider to provide as a dedication to the public on a final parcel map for condominium purposes , the relinquishment the vehicle access rights to along an existing public street.”

Can you clarify, please?

The relinquishment of ACCESS RIGHTS can be made or requested at any time.

ACCESS RIGHTS are the right to pass over a line. In this case, you are being asked to give up the right to cross that line to get to the street.

There is no land involved because the line is infinitesimally thin and has not width; just length.

This sort of requirement is quite common. It is used when vehicular traffic will pose a hazard to those already on the street or those trying to get to or off the street and onto your project.

BTW - §66477(c) says “…the local agency shall specify whether the dedication is to be in fee for public purposes or an easement for public purposes…”

Of course, the relinquishment of a RIGHT, particularly of this nature, is rather difficult to classify as either a fee or an easement.

If you were to fight this in court, I think you would have little3 chance of winning. If the local jurisdiction can show a nexus between the request and public safety, you wouldn’t even get your day in court.

Of course, this is just my musings and not real legal advice. You’d need to seek council of an experienced, licensed attorney.

[coupleofacres]

Attached is the local agency's subdivision ordinance referenced in initial post pertaining to dedications. Thanks!

[coupleofacres]

I agree with bringing this up during due process of the conditions, but I was not involved then, my real concern is not one shared by the PO, that being the map is prepared correctly and in accordance with the statutes.
I am okay with and understand why they want to restrict the access due to safety reasons, traffic flow, master plan, etc. and they have done so during the design/approval process for the project. I am very uncomfortable with how I am being directed to accomplish this requirement. I do not think a dedication is the right vehicle to use here (no pun intended) but it is all the local agency has in their ordinances. I would be fine with a statement on the map i.e. "vehicular access rights waviered as shown hereon per ordicance XX" but XX does not exist.

[coupleofacres]

Dear Steve and Ian

Thank you both for your responses to my post regarding dedication of vehicular access rights for a PM for Condos on a lot created by Map in 1885.

The legal counsel for the local agency supported my opinion that this requirement was not a dedication and only a condition for approval.
I have been requested to show and state on the map "vehicular access rights relinquished per condition for approval......." I am okay with that but not sure of any affect this has on property rights. It's really ridiculous since the development of any lot today for similar purposes is so scrutinized by the local agencies governing how the development must be, and in this case, the access to the street involved is physically impossible based on the approved development plan.

This relieved the developer from the requirement of having the trustee or beneficiary sign the map, which is why I pursued this originally in the effort to prepare the map correctly.

Thanks again for your input.