Affect to Single Parcel Bisecting by Hwy in Fee

[D Ryan]

Look at Section 66424 of the Subdivision Map Act, which states, "Property shall be considered as contiguous units, even if it separated by roads, streets, utility easement or railroad rights-of-way".

[Peter Ehlert]

"All of the real estate attorneys I work with and all of the surveyors that I've spoke to concur..."

Susan: I sure hope your exposure has been rather limited... any professional conversant with land development in California should be very conversant with 66424.
Perhaps it is time to seek out new relationships. Ventura County has many skilled in land development... do you need referrals?

Peter

[cals6406]

66424 has to do with contiguous parcels

see 66426.5 of SMA

[Gary O]

66424 has to do with contiguous parcels

see 66426.5 of SMA

66425 states "The necessity for tentative, final and parcel maps shall be
governed by the provisions of this chapter" of which 66426.5 is a part so that section only states that a map is not required and doesn't govern the question at hand.

I fully agree that the road does not divide the parcel per 66424.

[Jim Frame]

I agree that the SMA is pretty clear on the subject. That said, if the local agency wants to treat the parcels separately and there's no effective opposition, they can do it.

There was a single parcel a few miles from me that was bisected by I-80, including a large interchange. The county wanted the 2 pieces to be developed separately in order to implement some ag conservation easements and create an ag market parcel via LLA, because the funding wouldn't support a Final Map. They got the County Counsel to issue an opinion that the freeway effectively split the parcel into 2 for purposes of development. Never mind that this was in direct conflict with the SMA, the county went ahead with the project and it's now a fact.

If a lawsuit to bar the project had been brought prior to implementation, I expect it would have succeeded. However, all the parties at the table wanted it done, and it got done. No harm, no foul, and it probably couldn't be undone now even if someone wanted to do that.

[Ian Wilson]

Gentlefolk:

Perhaps in the rush to supply an opinion, the facts have been trodden upon (actually, they were never completely presented, they were merely assumed…). While SMA §66424 does in deed speak to the contiguity of parcels “…even if it is separated by roads, streets, utility easement or railroad rights-of-way…”, it must be noted that in no case is there a mention of the separating entity being anything other than an easement. Not one of us would ever argue that an easement could possibly segregate a parcel into two parts. Not one of us would argue that Parcels 1 and 3 of a subdivision, separated by Parcel 2, could ever be considered as contiguous under any circumstance.

Why then do you change that opinion when confronted by the fact that the ownership of the underlying fee of the road belongs to the public or to the government?

If the road is held in fee and the access across that road were cut off so that direct access between the two portions of the parcel was no longer possible after the taking, would your opinion be different?

Citations of Thompson (People v. Thompson, 43 Cal. 2d 13) fall short. It was shown, in that case, that even thought the use of the portions of the land was quite varied, the access between the portions was not in any way diminished by the roadway. That Court held that the parcels were contiguous by the nature of the access between them. In fact, the Thompson Court actually emphasizes the fact that if the parcels are separated by use, access, ownership and entry, the decision would have been very different. While the interest of the Thompson case is in the outcome of the awarding of damages due to the diminution of value rather than the contiguity of parcels for subdivision purposes, contiguity is contiguity. The state may not have “two bites of the apple” any less than a private citizen may not.

Take a few moments to read through the short case People v. Fair, 229 Cal. App. 2d 801, 40 Cal. Rptr. 644. This case also deals with compensation for severance damages, however, once again, severance is severance and contiguity is contiguity. The remainders are either contiguous for all purposes or they are severed for all purposes.

In Fair, the Court states, “We conclude that in the instant case, the ownership of the fee in the highway by the state, together with the fact that there were no direct access rights between the parcels of land involved, resulted in the two parcels concerned being noncontiguous, separate and independent. Thus, defendants' remaining properties on both sides of the highway could not be properly considered as the residue of a larger parcel (Sharp v. United States, 191 U.S. 341, 354-355 [24 S.Ct. 114, 48 L.Ed. 211]). The court properly held that the special benefits accruing to the property on one side of the highway could not be offset against the severance damages accruing to the properties on the other side.”

The key point to take away from this is that all cases are not equal. One single fact may change the decision. Just because a road bisects a parcel does not mean that the two portions of the parcel are held as one parcel under all circumstances. And, as Jim pointed out, even when the statutes overwhelmingly point in one direction, if all parties are in agreement, a different path may be found and used.

All is NOT black and white under the law; shades of gray are much more prevalent. That’s why the only real answer to any boundary question should start with “It depends…”

Pin pulled. Faint of heart step away from the blast area….

BTW – I have been thoroughly impressed by the threads recently. There has been an incredible amount of excellent discussion on both sides of the topics presented. The responses have not been collections of mere opinions, either. There have been citations, quotes and real thought put into the responses. This has become a very meaningful, insightful and valuable forum for free flow of ideas and ideals. I am very proud of you all and of this forum and my membership in it.

Now, let the games begin! Or, as the Chairman might say “Allez debate!”

[Jim Frame]

With regard to the notion that the word "separated" as used in §66424 only applies to easements, consider AG Opinion No. CV 78-31 (61 Op. Atty Gen. Cal 299). This opinion specifically finds that a 30-foot canal held in fee simple does not constitute a separation under the SMA.

That said, I agree with Ian: every case is different, and "it always depends."

[Ian Wilson]

Jim:

Do you have a copy of 78-31 handy that you can fling at me? I can't find mine.

After reading Thompson and Fair, I really wanted to compare those decisions to 78-31. My recollection of 78-31 didn't square with what I was reading in those opinions.

BTW - the opinion not withstanding, I successfully argued that a similar canal through a parcel divided the property for Parcel Mapping purposes in one county and successfully argued against the same thing in another county. The law is far from chiseled in stone.

[Jim Frame]

Here's a link to it: http://www.californiasurveyors.org/members/61AG299.html

I don't know if you can reach the page without being logged into the member area. If not, and anyone wants to see it who can't log in, let me know and I'll post a PDF.

[Ian Wilson]

Thanks, Jim...

[Ian Wilson]

61 Op. Atty. Gen. Cal. 299 (CV-78-31) is a rather interesting document. And I did remember it fairly well.

The question asked of Attorney General Younger was “May commonly owned units of land separated by a fee simple strip of land owned by another constitute "contiguous units" under Government Code section 66424?”

The opinion wanders far afield at times. It mentions the fact that “…anyone who offers to sell or lease any part of a "subdivision" without complying with the Act is subject to criminal sanctions…” What this has to do with the question at hand is anyone’s guess. The opinion goes on to make great notice of the fact that the SMA “…draws a distinction between those subdivisions dividing property into five or more parcels and those creating four or less new parcels…”, which is, in my opinion, no closer to the question.

However, the AG rightfully bases his opinion on a pair of precepts; first, the orderly development of land in the community, and, second, the consideration that the divided parcel can be developed as a single subdivision.

When considering a parcel bisected by a simple road held by the local agency as an easement or dedication, the access across that road is no hindered in any way. In fact, many subdivisions actually create internal roads that pass entirely through the subdivision providing primary and secondary access. No one considers the fact that these roads create separate parcels by the nature of the road. I have even prepared subdivision maps of large parcels where in contemplated roads do not conform to parcel lines for topographic reasons.

A road or right-of-way held as an easement or dedication does not hamper orderly development of the community in any way nor does it present a difficulty in developing the larger parcel as a single subdivision project.

The opinion alludes to the fact that the legislature has provided direction in §66424 of the SMA. “…[s]eparation caused by such expressed circumstances normally would not thwart development of an integral subdivision project from the separated units…”

Having spent some time presenting this argument, the opinion goes on to the case at hand in which a canal and roads built on both sides of the canal are owned in fee by the United States. Presumably, the canal and roadways are fenced off in order to protect the public from the ravages of these canals. Further, as has been my experience with such canals, the jurisdiction hold the fee to these canals is unwilling to allow the owner of the parcels on either side to build bridges or other access structures across the canal to facilitate access between the two portions of the parcel. Under the very argument put forth in CV 78-31, the parcel so bisected cannot be “…reasonably…developed as one subdivision…”

The value of CV 78-31is that it establishes a clear line test to determine the nature of the bisector. If the bisector does not hamper the subdivision of the greater parcel, then the two parts must be considered as one. If the bisector prevents full enjoyment of both parts without any distraction, the two parts should be considered as two separate parts.

The opinion goes on to claim that the omission of the word “canals” from the statutes doesn’t mean that the legislature meant to omit canals. It even makes the bold statement that “…if the canals in this case are not treated similarly to roads, streets, utility easements and railroad rights-of-way, the Act's primary goal of implementing orderly community development would be restricted without advancing any other public interest requiring a contrary interpretation…” In my opinion, nothing could be further from the intent of the legislation. SMA §66424 lists items which are not owned in fee by the dominant party, except under specific and unusual circumstances. Further, in each case, unless there are unusual and specific circumstances, access across such items is not restricted in any way.

In short, in it’s discussion of the canals, which was the purpose of the original question from Glenn County, the opinion violates its own bright line test!

The opinion makes note of the idea of compensation for severed parcels and the compensation being attributed to a smaller or larger parcel on the basis of contiguity. Interestingly, the AG had access to both People v. Thompson and People v. Fair as those cases were published in 1954 and 1964, respectively. The opinion even cites Thompson! And yet, it fails to understand the import of the quality of it’s own test.

In my opinion, this AG opinion is flawed and it may well be refuted in court by other appellate decisions.

[Quoted text taken from 61 Op. Atty. Gen. Cal. 299 (CV 78-31)}

[Jim Frame]

"the jurisdiction hold[ing] the fee to these canals is unwilling to allow the owner of the parcels on either side to build bridges or other access structures across the canal to facilitate access between the two portions of the parcel."

Note that the AG opinion states that "[t]he landowners have constructed small bridges over the canals, and county roads span the canals." It sounds like the fee owner (USA) reasonably accommodated requests for crossings.