Accepting and Abandoning Public Easements and Right-of-Way
California statutes use two terms for accepting and abandoning property over which the public has non-ownership control – Dedication and Vacation. Otherwise, a jurisdiction must buy a property through negotiation or sell a property through public auction. Eminent Domain is a special case of negotiating a purchase where property owners are compelled by a court order to sell at fair market value. In all cases, jurisdictions must clearly demonstrate a public convenience and necessity, such as an access easement to maintain utilities or eminent domain to widen a street.
In general, a Dedication is an “offer” by a property owner, which may or may not be accepted by a jurisdiction. Jurisdictions are allowed to add conditions to their acceptance, the most common of which are requiring that the Dedication be “irrevocable” and that an improvement be constructed prior to acceptance (e.g., sewer main, roadway and sidewalks, traffic signal). Jurisdictions rarely require that the ownership of the underlying fee-simple interest also be dedicated, which means that in the event an easement or r.o.w is vacated, ownership is retained by the abutting property owner(s) without payment of fair market value to the jurisdiction. The California Government Code provides two methods for dedicating public service easements and right-of-way – subdivision map (GC Section 66439 and 66447) and recorded grant (GC Section 7050). The Government Code (GC Section 66477.2) and the Code of Civil Procedure (CPC Section 771.010) stipulate time limits for jurisdictions to accept or reject dedications, during which the property’s title remains “clouded”. Acceptance (or rejection) must be done by the jurisdiction through a Resolution or an Ordinance.
In general, a Vacation is a “rescission” of public control over a public service easement or right-of-way. The most common petitions from property owners are for easements and r.o.w. which have remained unused and unimproved since their dedications were accepted years before. On occasion, developers will propose that an improved easement or r.o.w. be relocated (e.g., buried sewer main, sidewalk), which would require a simultaneous Vacation and Dedication. Property owners less-frequently propose that the public’s use of a portion (or all) of an improved easement or r.o.w. be rescinded to facilitate private activities without any compensating replacement. In all cases, jurisdictions must determine if the public’s convenience and necessity would be negatively impacted should control over the property be rescinded.
As a condition of vacation, jurisdictions often require that existing public infrastructure be modified (e.g., installing sidewalk, curb, and gutter across a vacated intersecting street). In general, the California Streets and Highways Code stipulates the Vacation process – Summary or General (SHC Section 892 and 8300 et seq.). In doing so, jurisdictions must also make companion determinations (“findings”) required by the Government Code (65402) and the Civil Code (CC Section 831). The Government Code (GC Sections 66434 and 66445) also provides a Vacation process with subdivision maps for existing easements and r.o.w. At the request of local agencies, jurisdictions will often reserve public easements on vacated r.o.w. for future (or existing) utilities.
Vacating public right-of-way has a special circumstance that occasionally occurs. Before World War I, developers could only grant easement for streets. State law had not yet adopted the principal of dedicating public right-of-way. If the granting document (typically, a subdivision map) did not specify that the abutting lot owners were given ownership of the land beneath the street easement, then the developer and his or her successors, heirs, and assigns retained ownership. Consequently, many jurisdictions will condition a Vacation with a requirement that the current property owner file a Quite Title action (CCP Section 760.010 et seq.) after their acquisition to extinguish any potential claims against the jurisdiction by a third-party descendent.
Closures limiting access to public streets (closures) is controlled by the California Vehicle Code (VC Section 21101 et seq.). Closures are not vacations, and jurisdictions retain all public right-of-way rights and uses. Closures may:
- control entry
- prohibit all or certain vehicles
- occur during certain hours (e.g., school hours)
- be temporary (e.g., parades, block parties), renewable, or permanent
Closures require that jurisdictions make specific findings (e.g., public safety).
Gates or other selective devices which deny or restrict the access of certain members of the public to the street, while permitting others unrestricted access to the street, are prohibited (VC Section 21101.6).