To live up to its responsibility toward the public, it is often necessary for the City to make use of private property. This section deals with the City's use of such property and the methods by which the property or the right to use it is acquired by the City.
E 144.1 Public Use
The City is charged with the responsibility of making improvements for public use. Some types of projects that are normally considered for public use are the acquisition of right of way to provide improvements such as public streets and alleys, sewers, storm drains, bridges, etc., and also, public recreation and park areas, reservoirs, public buildings, etc.
To make these improvements, the City may need to acquire either the underlying fee title for the property or a lesser degree of interest, such as an easement or right of entry on a temporary or permanent basis.
The Engineer should recognize that slight variations in the City's requirements can affect the design and project completion time as well as the right of way and total project costs. In this regard, the Designer should not be indiscriminate or arbitrary in requesting right of way. For example, the Designer should consider the fact that by acquiring a few less feet of right of way and thereby leaving existing private improvements intact, the total project cost could be reduced considerably. On the other hand, acquiring a few more feet of right of way may permit the use of a milder slope which may increase the initial project cost but may considerably reduce future maintenance costs. Using this type of broader approach in the design of all projects should ultimately result in an overall benefit to the City and the taxpayer.
E 144.2 Types Of Acquisition, Rights
There are various methods by which the City may acquire the use of property, such as dedication, condemnation, adverse possession, grant, and exchange. The Street Designer generally will be concerned only with dedication and condemnation.
E 144.21 Right Of Entry (Unrecorded)
It is not always necessary to record a formal document where the use of private property is to be temporary and where no material changes are to be made. For most surveys, route reconnaissance or soil tests, it is customary for the Real Estate Division of the Bureau Engineering to get consent from the property owner in advance by obtaining a RIGHT OF ENTRY.
E 144.22 Temporary Right Of Entry And Right Of Entry (Title Transfer)
TEMPORARY RIGHT OF ENTRY is the recorded document by which the owner of private property grants to the City temporary permission to enter, use and/or change its property. The termination date, location, and proposed use of the property must be specified.
A TEMPORARY RIGHT OF ENTRY is customarily employed where minor construction is required (e.g., moving a fence, reconstructing a portion of a private driveway, etc.) and where the liability and maintenance responsibility will revert to the property owner. When the term "RIGHT OF ENTRY" is used, it should be followed by the desired specific use or right.
RIGHT OF ENTRY (TITLE TRANSFER) is employed when it is necessary that construction commence prior to close of the title transfer. In emergencies during construction the Engineer may negotiate a RIGHT OF ENTRY. However, if the owner wants other than the standard agreement promises, these promises must be approved by the Council to be binding. Such negotiations shall be conducted by the Real Estate Division.
Most RIGHT OF ENTRY agreements generally contain provisions to terminate the rights when construction is completed. TEMPORARY RIGHT OF ENTRY agreements end when a Notice Of Termination of Temporary Easements is filed by the Division Engineer of the Street Opening and Widening Division of the Bureau of Engineering (within 90 days after the Board's acceptance of the project).
E 144.23 Easements
For definition, see E 120, Definitions. An EASEMENT is a permanent RIGHT OF ENTRY. EASEMENTS are generally used for complex or extensive construction projects for permanent public use which will be maintained by the City.
In case the new construction is of a type which will not require City maintenance (e.g., rock faces) a RIGHT OF ENTRY should be negotiated instead of an EASEMENT. In fact its use is preferable to that of an EASEMENT as the acquisition of easements consumes more time and money.
Due to the nature, complexity, and permanence of some improvements such as guardrails, certain types of side slopes, retaining walls, storm drains, etc., it would not be expected that the property owner should be responsible for maintenance. Therefore the City, through acquisition of an EASEMENT, may legally have access to and use of the property for maintenance and operation of these facilities.
The easements most frequently encountered by the Street Designer are STREET EASEMENTS and CONSTRUCTION EASEMENTS.
E 144.231 Street Easements
Generally, a STREET EASEMENT is a strip of property acquired and controlled by the City on a permanent basis for use as a public street. The word "dedication", commonly used to refer to such an easement, is often a misnomer since a dedication is merely one of the voluntary means by which an EASEMENT has been acquired. The term "dedication" would be incorrect for example, if a STREET EASEMENT has been acquired through condemnation proceedings. A STREET EASEMENT may be acquired for construction purposes. However, its main purposes is for the accommodation of vehicular and/or pedestrian traffic. Such an EASEMENT is normally required where new streets are to be located or where existing streets are to be widened or realigned.
An IRREVOCABLE OFFER TO DEDICATE for future street widening or extension is often included as part of a subdivision. If this kind of EASEMENT is not used by the City after 25 years of existence, it expires and the property owner may apply for its relinquishment. In the meantime the property owner may use the property for nonpermanent purposes with permission.
E 144.232 Construction Easements (Temporary Right Of Entry)
EASEMENTS for construction purposes are usually labeled for the type of improvement involved, (i.e., retaining walls, etc.).
CONSTRUCTION EASEMENTS should not be used for purposes which are incidental to construction, such as storage of vehicles, materials and equipment. As previously indicated, RIGHTS OF ENTRY are sufficient for minor construction purposes. The indiscriminate use of CONSTRUCTION EASEMENTS when RIGHT OF ENTRY use is indicated may result in unnecessary delays and extra paperwork.
E 144.233 Slope Easements
Easements for slope purposes are acquired for the use of private property for purposes of sloping the ground, changing the contours or other grading operations.
On minor sloping operations the resulting maintenance is neither significant nor critical. A TEMPORARY RIGHT OF ENTRY should be sufficient. After construction the property owner assumes the responsibility for maintenance.
SLOPE EASEMENTS that require extensive maintenance may remain the responsibility of the City and are usually permanent in nature.
The conditions that would normally indicate City maintenance are:
- Slopes that are very steep or of questionable geological formation or soil which is subject to slides or slippage.
- Where extensive erosion control is necessary and the installation, operation, and maintenance of sprinkler systems on planted slopes are expected.
- Slopes that are very high and need drainage ditches whose drainage structures require periodic checking and maintenance. (For example, drainage structures in steep slopes abutting major and secondary highways, freeways, grade separations, or any slopes or structures not readily or reasonably accessible to the property owner.)
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