Less Than Legal Street Width May Require A Variance
I doubt it is any surveyor's budget to foot a variance hearing, so hold the given width.
In most cases prorationing of lots is de minimis. It is easy for a judge to accept a prorated 48' lot as meeting 50' minimum lot width. Not so easy for a 50' street being less. Unless it is 49.5'.
Paul in PA
I'm in favor of holding..
all the measurements in a plat responsible for bearing the excess or deficiency. Jim in AZ put it to words. I realize there are more factors that could sway my decision one way or the other.
Originally I was thinking in a very simplistic situation:
How far west of the NE corner of Block 2 would you place the NE corner of Lot 4?
I would place it 149.53' feet from the Block corner, with a total parcel width of 99.69'.
I'm in favor of holding..
If you ignore the road, the factor is 0.9965 vs. 0.9969. 0.04'/100' = 1:2,500. Either way is better than the original survey.
What about the following? Surveyors R US goes out and subdivides a parcel. They create a roadway with a r/w at 60' per local ordinance/bylaw. Then Your Survey Company goes out to survey the previously landlocked parcel behind the first parcel. You discover a need to apportion the first subdivision and the Planning Board denies your client's application due to the inadequate way.
I'm in favor of holding..
How far west of the NE corner of Block 2 would you place the NE corner of Lot 4?
I would place it 149.53' feet from the Block corner, with a total parcel width of 99.69'.
Street gets its' full width of 60'
560.00'-60' = 500'
558.26'-60' = 498.26'
498.26'/500' = 0.99652 prorate factor
0.99652x50' = 49.826' = lot frontage
x 2 = 99.652' for Lots 4 & 5 (combined)
0.99652x3 = 149.478' westerly from NE corner Lot 1 (Block Corner)to NE corner Lot4
> So in the case of proportioning, you're saying the King gets his due before the proportioning is applied to what is left.
>
Actually, the King only gets what the King needs, because we have no King in the USA. The rights of the private landowners are preferred over the needs of the public. That's why they have to first prove there is a public necessity before they can compensate for the taking.
> What about the case where there are no interior lot corners found, but found block corners measure out to 59 ft for a street of 60 ft record. Do you "fix" the street width or go with the monuments?
The rule of apportionment (distribution of excess and deficiency) is confined to the nearest found monuments in each direction. Finding two opposite block corner monuments will fix the street width, but not for any reason due to the apportionment rule. That reasoning hinges upon the intent for the monuments to mark the block line coupled with proof of the fact that they were relied upon by subsequent purchasers.
Apportionment rule considerations given to public ways would only apply if you found the nearest monuments to be on the blocks on opposing sides of a street. For example: if you were to recover the block corner monument at the northeast corner of two adjacent blocks, you'd subtract out the public streets and alleys, then apportion the excess/deficiency proportionately between the private tracts.
Different rules for different reasons.
John
If the subdivision creates both the streets and lots simultaneously one MUST prorate ALL parcels, including streets. To me that is incontrovertible and unarguable.
Not so. Never prorate through the street. Street gets its' full width.
And...sometimes you do not prorate at all. Sometimes the best available evidence (found, but unrecorded corner monuments, and occupation) points to another solution. There are blocks here in Seattle with record distance lots starting at one end, and ALL of the excess (or deficiency) is in the "last" lot.
The real answer is that the original survey holds. Not the piece of paper, but the actual survey on the ground, as originally monumented. (In the instances above, there are no longer any original monuments, but there is ample evidence of where those monuments were originally placed.)
Also, the custom was to give the ROW the full record distance, so it is highly unlikely that the original lot monuments at the edge of the ROW were set at a prorated distance. In fact, it can be argued that it is highly unlikely that an "old" plat from 1920 was ever prorated originally. That is why there are many surveyors around here that flat out refuse to prorate. They measure the record distance along the centerline from the closest monument, turn their angle, and off they go.
And it is highly probable that they are following directly in the footsteps of the original surveyor as they do so. If I miss them by 0.2', who says they are wrong?
I'm with you. Got to respect where the boundaries have already been established. If an 80 year old plat is still out there clean with no established lines from previous or the original survey, then the apportionment rule would apply. After the lots have been built on and folks have relied upon surveys down through the years we don't make it how it was supposed to be, but how it is (for the most part).
Here is something that should put the prorate including the street to rest. It is from "Boundary Controls & Legal Principles", Second Edition by Curtis Brown.
I was trying to ask about the case where the two monuments on opposite sides of the street were 59 feet apart. Do you correct them to give the street its 60 ft record width? If so, that might be a legitimate place for a pincushion?
Interesting . . .
I ran into a survey(city subdivision) that had all the original stones place for the subdivision(ending at a street intersection).
The next block was another subdivision . . . again with all the original corner monuments . . . to the intersection.
The first subdivision was made BEFORE the road was built and never called for the road.
The SECOND subdivision INCLUDED the road(50' wide), but the original monuments for the last lot was placed 49.5 feet from the last original monument for the first subdivision.
I was in the first subdivision, so I didn't really care, but, of course, I denoted the shortage as an informative bit of information.
Since the last lot of the lot that included the roadway agreed with the rest of the second subdivision and the monuments were original, I would think that it's possible the R/W was 49.5'.
I'm not aware of the city actually having 50' minimum width at the time of the second subdivision and there were a number of subdivisions at the same time with varying widths sometimes less than 40'.
Since the map indicated 50'(as shown on the subdivision map to be "50"), I wonder if the same rules apply to the authority regarding what is 50', 50.', 50.0' or 50.00'?
"Also, the custom was to give the ROW the full record distance, so it is highly unlikely that the original lot monuments at the edge of the ROW were set at a prorated distance. In fact, it can be argued that it is highly unlikely that an "old" plat from 1920 was ever prorated originally."
What do you mean "prorated originally"?
"...we don't make it how it was supposed to be, but how it is..."
ABSOLUTEY CORRECT!
R/W is the stated width, no more no less.
"The private and public property, however, are not on equal footing..."
Really? Why would that be? If the originally surveyor had a 100 foot long tape that was actually 99 feet long why wouldn't all his measurements be wrong? Don't I need to follow in his footsteps? Don't I need to attempt to do what he actually did, not what he should have done?
I just don't buy into a system of double standards where I follow in the footsteps sometimes but not others. I don't believe that a court would tell me that a subdivision plat does not simultaneously create ALL of the parcels thereon, all with equal standing, in which case all are treated the same.
Jim,
I am kind of with you on this except, I think that more often than not, the street is laid out differently than the blocks. So I think the retracing surveyor would have to go down the street monuments and prorate, or calculate between any street monuments he found and intersect those with the block-line monuments. I am less-concerned about holding exactly 60' for right-of-way width, than I am about getting the street-alignment to work within itself: like the street was its own subdivision so to speak. Would you prorate across an exterior subdivision boundary, or would you intersect an interior subdivision line with the exterior subdivision line and truncate it at the exterior line?
I'm in favor of holding..
:good:
:good:
The hat trick with this paradox is that the streets should get their width because you cannot take that which is the king's. That being said, what in the hell are you going to use to determine the king's widths?
Technically, private ownership takes the excess or deficiency and the streets get their width.
Realistically, if this is a problem, you're probably tickled pink to find anything, and you let the streets be what the streets are already and do your very best not to work from block to block.
I think I've summed it up quite nicely.
"The hat trick with this paradox is that the streets should get their width because you cannot take that which is the king's."
What are you thinking? No one is "taking" anything from anyone! We are talking about proportioning distances across parcels that were simultaneously created by a plat. All have equal "dignity" in the eyes of the law, or there is not such a thing as "simultaneous creation" of parcels. Period.
