City Attorneys Conference s1

City Attorneys’ Conference March 19, 1999

Issues Relating to Property in City Streets: An Update

David Lawrence Institute of Government

Title to the Street

1. A street has been offered for dedication to the city. Which of the following actions, or combinations of actions, are sufficient to indicate city acceptance of the dedication?

a. With respect to a strip on one side of the paved street, shown on the plat as “reserved for planting purposes,” the city has planted vegetation, run light poles, and placed electric wires underground. [Harris Bank v. City of Geneva, 663 N.E.2d 483 (Ill. Ct. App. 1996)]

b. With respect to streets in a subdivision, when the streets have been maintained by a property owners’ association but are deteriorating, the city’s public works director undertook a study of the streets and made a number of improvement suggestions to council; the council took no action on the recommendations. [Hibbs v. City of Riverdale, 490 S.E.2d 436 (Ga. 1997)]

Some N.C. Cases: Steadman v. Town of Pinetops, 251 N.C. 504 (1960) Haggard v. Mitchell, 180 N.C. 255 (1920)

2. A road is shown on a plat, which was recorded in 1958. When the actual paving was done, however, it was done 30 feet off line, and the city has been maintaining the actual paved surface. Where, if at all, is the legal road? The unopened street

1. In an old subdivision, the city has accepted and maintains the streets, but some portions of some streets have not been opened. Property owner owns lots that abut one of the unopened street portions, and he has applied for building permits for the lots. They have been denied because the zoning ordinance requires that any lot abut an improved street. Therefore, he has brought a mandamus action to require the city to open and improve the streets. Who wins? [Chatham County v. Allen, 402 S.E.2d 719 (Ga. 1991)]

2. Same facts as above, except rather than sue the city, the property owner simply hires a bulldozer and begins to construct the road. Does he, as an abutting owner, have this right? [Anderson v. Healy, 629 N.E.2d 312 (Mass. 1994) Bank v. City of Chicago Heights, 381 N.E.2d 446 (Ill. Ct. App. 1978)]

3. May the city adopt an ordinance that requires persons owning land abutting city streets to keep mowed the grass the grows in that portion of the street right of way that is not paved and that, in fact, appears to be part of the abutters’ yards.

Uses of the Street Easement

If a city holds an easement for street purposes, may it place or allow the following uses in the easement:

a. Water lines [Rouse v. City of Kinston, 188 N.C. 1 (1924)]

b. Creation of a park [Wooten v. Town of Topsail Beach, 127 N.C. App. 739 (1997)]

c. Parking only (no through traffic) [March v. Town of Kill Devil Hills, 125 N.C. App. 151 (1997)]

d. Construction of a pedestrian mall, with no vehicular traffic [Town of Emerald Isle v. State, 78 N.C. App. 736 (1986), rev’d Town of Emerald Isle v. State, 320 N.C. 640 (1987)] The duty of maintenance

A city street was severely damaged in a storm, with a good bit of the road having washed away; the road bed is now covered by the new bed of a neighboring river. The road is the only access to several lots. Does the city have an obligation to construct a new road to replace this one? Doing so will require exercise of the power of eminent domain.

Vacation of the street (street-closing under G.S. 160A-299)

1. The city wishes to close a grade-crossing, that is an intersection of a street with a railway track. What is the appropriate procedure for doing so?

2. G.S. 160A-299 permits a city to vacate any street “that has been irrevocably dedicated to the public, without regard to whether it has actually been opened.” May a city vacate a street that has been offered for dedication when the city has not accepted the offer of dedication? [In re Easement in Fairfield Park, 90 N.C. App. 303 (1988)]

3. Before a city may vacate a street, the council must find that “no individual owning property in the vicinity of the street or alley or in the subdivision in which it is located would thereby be deprived of reasonable means of ingress or egress to his property.” May the council make the finding in each of the following cases:

a. Property owner owns several platted but vacant lots along a street to be closed. He also owns the lots that back on these and that front on the next street. He has access to the lots on the closed street through the neighboring lots, but if he sold the lots on the closed street, there would be no street access to them. [Phipps v. Town of Turkey, 123 N.C. App. 354 (1996)(unpublished)]

b. Property owner owns several platted but vacant lots along a street to be closed. The only other access to the lots is along a 12-foot unopened alley. c. There are two lots that front on an unopened street, and the owner of the corner lot petitions for closure. There is no other access to the back lot, but the owner is willing to “waive” his rights to access.

4. G.S. 160A-299(f) provides that a city “may reserve its right, title, and interest in any utility improvement or easement” within a closed street. Does this include an easement for stormwater?

5. The plat for a subdivision shows lot lines ending at the street line. The original developer owns lots on one side of an unopened street and petitions for the city to vacate the street easement. If the street is vacated, is title to the street bed divided between abutting lots (as the statute states) or does the developer gain title to the entire street bed? [See Russell v. Coggin, 232 N.C. 674 (1950)]

6. A street has been vacated, and the ordinance doing so has been recorded. One of the abutting owners sells his lot by reference to the deed by which he took title; that deed descibed the lot as bounded by the closed street. Does he automatically also convey his title to the vacated street? [See General Greene Inv. Co. v. Greene, 48 N.C. App. 29 (1980)]

7. One company owns land on both sides of a street and has approached the city about closing the street between the two properties, so that the company can build in the street bed. May the city sell the street to the company rather than vacating it?