By William W. Abbott

Older subdivision maps create a series of unique considerations. In the case of Wright v. City of Morro Bay (November 7, 2006) 2006 Cal. App. LEXIS 1752, the court wrestled with the status of a mapped but unused road. Property owners Wright and Reddell (“Wright”) owned property in the City of Morro Bay. The property was the subject of an 1888 subdivision (pre-dating California’s first subdivision ordinance, enacted in 1893.) Wright’s property was adjacent to a street (“Jordan Terrace”) shown on the subdivision map. Jordan Terrace had never been used a public street or for any other public purpose. In 1935 however, the City had accepted Jordan Terrace into the City street system.

As the subdivision map pre-dated the first state statute regulating subdivisions, the court applied the common law with respect to dedications.  The filing of the map showing streets constitutes an offer of dedication, which may be accepted for public use by formal action, or simply by public use.  Here, there was no dispute that the City had formally accepted the road into the City system, although it was never used for that purpose.

Wright argued that Code of Civil Procedure 771.010 and its predecessor governed, and that the failure to use the property resulted in a conclusive presumption that the offer had never been accepted.  The appellate court noted that 771.010 and its predecessor were enacted twenty years after the City’s formal action to accept the road, and absent a clear legislative statement of its retroactive application, was not a basis upon which the court could conclude that the offer had lapsed.  While in circumstances where a city rejects an offer and over time the owner uses the road area (through fencing and improvements), a court may apply 771.010 retroactively (Paris v. County of Santa Clara (1969) 270 Cal.App.2d 691), such facts were not applicable in Wright’s situation as there was a formal acceptance (compared to a rejection) and a lack of inconsistent use of the road area.

Wright also argued the lack of use by the City constituted a lapse.  However, formal acceptance by the City completed the dedication, and mere non-use by itself does not rise to abandonment or an estoppel claim.  The court went on to note that formal vacation of the street under the Streets and Highways code was the exclusive means by which the City could terminate its interest in the road.

   Even then, the Wright court expressed reservations about retroactive application of 771.010.

Bill Abbott is a partner with Abbott & Kindermann, LLP.   For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.