California Surveyors Forums

Q: Does state law assume acceptance or rejection of a road dedication on a map, if the city doesn't say it is doing either?
What is the status of dedications offered on a Parcel Map, if the city / county didn't state whether they were to be accepted or rejected?

On the attached 1996 parcel map, the Owner's Statement dedicated the roads to the city for public use, but there is no City Clerk's Statement which would indicate the city's acceptance,rejection, or rejection at this time. What does state law say on this matter?

Thanks for any thoughts.

SMA section 66440 has been in its present form since 1987:

"The final map shall contain a certificate or statement for execution by the clerk of each approving legislative body stating that the body approved the map and accepted, accepted subject to improvement, or rejected, on behalf of the public, any real property offered for dedication for public use in conformity with the terms of the offer of dedication."

Interestingly, there is no parallel mandate for parcel maps. Refer to the local jurisdiction's Development Code for requirements. Typically, parcel map approval is delegated to the County Surveyor or City Surveyor, together with acceptance of dedications.

That also leaves open the option to accept the dedication by separate instrument, pursuant to terms of a subdivision agreement - if applicable - once improvements are accepted and bonds released (except for retention during warranty period).

Warren,
Thanks... I thought that requirement applied to all subdivision maps. In this case, the city's subdivision ordinance authorizes the City Engineer to accept or reject offers of dedication, but he didn't do so on this map.

The question can be clarified:
What is the status of dedications offered on a Parcel Map, if the city / county didn't state whether they were to be accepted or rejected?

It's hard to fathom that the tentative map conditions didn't address this, particularly since Caltrans is involved with SR 4. I can imagine one of the conditions relating to the City transferring its interest in Brentwood Boulevard to the State once its inspectors signed off. The City Engineer, by signing as to conformance with the approved tentative map, has to account for all such conditions.

Normally, a subdivision agreement, signed by all affected parties will cover deferred construction and terms for compliance - such as the acceptance of the offer of dedication by separate instrument.

I'll have to ask the city for copies of the conditions of approval and subdivision agreement.

That is why we require an irrevocable offer of dedication - and normally reject the offer. It remains open, subject to acceptance at a later date - or vacation, if appropriate.

Warren Smith wrote:It's hard to fathom that the tentative map conditions didn't address this, particularly since Caltrans is involved with SR 4. I can imagine one of the conditions relating to the City transferring its interest in Brentwood Boulevard to the State once its inspectors signed off. The City Engineer, by signing as to conformance with the approved tentative map, has to account for all such conditions.

Normally, a subdivision agreement, signed by all affected parties will cover deferred construction and terms for compliance - such as the acceptance of the offer of dedication by separate instrument.

In our Caltrans district, they require all dedications to them to be in fee, so an easement would not have been sufficient.

I find it interesting that the access denial from a previous map (68 PM 44) is already set at the back of the Brentwood Blvd. offer. Makes me think that there may have been an existing offer already in place. Did you look at 68 PM 44? There also appears to be an existing easement along Lone Tree Way labeled as E4 from same map. Maybe City didn't need to accept/reject because they already hold easements for these streets.

Yes, seeing the metric dimensions on the map suggests that Caltrans may have played a large part in the approval process (That's its symbol in the lower right). I would also look into a Cooperative Agreement with the State for this site. They deal with right of way issues and the timing of transfer (usually in fee). This map was filed prior to the 2009 amendment to SMA section 66439, which requires the express statement of fee or easement dedications.

dedkad, 68 PM 44 (1978) did offer the roadway to the county, about which the county clerk's statement says the county "... did not accept or reject on behalf of the public any of the streets, roads ... shown thereon as dedicated to public use." E4 was per 68 PM 44, and the map I'm currently looking at widens the R/W by a second offer.

Warren, Metric or dual units was standard in Contra Costa County at the time; thankfully, that time is gone. Regarding Caltrans, they didn't take it in fee in 1996; they were already at work on the new bypass freeway on the other side of town.

I asked the city this afternoon for copies of the COAs, the subdivision agreement and if they know if the dedication was accepted at a later date.

That said, if an offer of dedication is made, and the jurisdiction doesn't act on it or say ANYTHING, would it be deemed automatically accepted or automatically rejected? Does state law or court cases address the matter?

If was the owner and the offer was rejected, I'd build a fence around it. Probably get arrested though. :D

There is a provision in the Civil Code about an offer of dedication - without acceptance - expiring after 20 years if unimproved. Presumably this could be applied to a dedication via a map.

The underlying problem is that the offer needed to have been addressed in the action approving the parcel map. That is a different approach to rectify.

Where are the existing public improvements in relation to the ROW line shown on your more current map?

The road was widened and a curb built in relation to the new R/W line a year after the offer of dedication was made.

Mind you, I'm not trying to advocate that the owner gets the land back free and clear. After all, a road is where it is, and so far no one is complaining. I see this as a puzzle, one that hopefully doesn't require a $100k court case to work out. Road R/W issues are the most difficult problem I encounter.

Anthony Maffia wrote:The road was widened and a curb built in relation to the new R/W line a year after the offer of dedication was made.

Mind you, I'm not trying to advocate that the owner gets the land back free and clear. After all, a road is where it is, and so far no one is complaining. I see this as a puzzle, one that hopefully doesn't require a $100k court case to work out. Road R/W issues are the most difficult problem I encounter.

It's weird that the offers were never accepted or rejected, but a portion of a public road being located on land without a formal easement is, unfortunately, not an uncommon issue. When the land is developed, it would be good for that easement to be finalized for the sake of the City and your client. The City may even ask for additional ROW for a sidewalk when the land is developed. This issue can be easily resolved and would not need a lawsuit to work out.

Anthony,

I'm including an excerpt of a file memo below that I wrote for a project I worked on involving an "implied common law dedication". Although it's a different scenario than the one you describe, you may find some of the references applicable.

From your first post: Q: Does state law assume acceptance or rejection of a road dedication on a map, if the city doesn't say it is doing either?
What is the status of dedications offered on a Parcel Map, if the city / county didn't state whether they were to be accepted or rejected?

I would say state law does not assume either acceptance or rejection outright. You have to analyze follow-up actions by the various parties. This scenario isn't that rare. I've encountered it before. It was usually just a goof on the agency's part, and in some instances they followed it up with a separate easement deed. Or they could simply record an acceptance if too much time didn't pass. Someone mentioned automatic expiration after 20 years. I think this a reference to the Ca. Code of Civil Procedure:

771.010. If a proposal is heretofore or hereafter made to dedicate real property for public improvement, there is a conclusive presumption that the proposed dedication was not accepted if all of the following conditions are satisfied:
(a) The proposal was made by filing a map only.
(b) No acceptance of the dedication was made and recorded within 25 years after the map was filed.
(c) The real property was not used for the purpose for which the dedication was proposed within 25 years after the map was filed.
(d) The real property was sold to a third person after the map was filed and used as if free of the dedication.

Implied dedication, in my opinion may well apply. Here's part of my memo-mostly for the references. You'll find some good reading in the cases cited:

No recorded deed, dedication, or road register right-of-way was located during our research for the site. The access road, parking area, trails down to the river, and the landing have all been used openly and continuously by the public for the prescriptive period of 5 years [Miller and Starr, California Real Estate §26:10; Friends of the Trails v. Blasius, (2000) 78 Cal. App. 4th 810, 821; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal. App. 4th 471] without objection by the owners. This results in an implied common law dedication, in the same manner the County has rights-of-way for many miles of County roads that lack recorded access. An excerpt of a California Attorney General’s opinion from 1997 (AG 96-405) is as follows:

A "prescriptive use easement" is an interest in private property entitling the holder to a limited use of the property. The owner of the property may not use the property inconsistent with the easement holder's limited use. (Civ. Code, § 1007; Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895, 899-901.) A prescriptive use easement may not be obtained in property owned by the state or public agencies. (Civ. Code, § 1007; Hays v. Vanek (1989) 217 Cal.App.3d 271, 286.).

When a "prescriptive use easement" is obtained in private property by members of the general public, it is more properly termed an "implied dedication." (People v. Sayig (1951) 101 Cal.App.2d 890, 896.) Recently the court in Hays v. Vanek, supra, 217 Cal.App.3d at 281, explained the two ways in which implied dedications are established by the public in a road located on private property:

"A common law dedication of a roadway to the public can be proved in either one of two ways: (1) by showing approval or acquiescence of the owner in the use of the road by members of the public under circumstances inconsistent with use under a license; or (2) by establishing open and continuous use by the public for a prescriptive period. [Citations.] The first method, implied-in-fact dedication, requires a clear and unequivocal offer by the owner to
dedicate the road to a public use and an acceptance of the offer by the public. [Citation.] The second method, implied-in-law dedication, shifts the focus of inquiry from the intent of the owner to the activities of the public. [Citation.]"


Dave Ryan,
Arcata, Ca.