Original Author: Hemsley, Sid
Date of Material: 03/22/2010
Right of way
MTAS was asked whether a particular road configuration created a subdivision and whether the city could obtain a street right of way that would create a subdivision without creating that subdivision.
Dear Community Development Coordinator:
Based on the set of facts and maps reflected in your letter to your MTAS municipal management consultant of March 3, you have essentially two questions:
2. Would it have been possible to have obtained a public street right of way in this case without creating a subdivision, and if so, how?
My answer to question 1 is that it appears that the road reconfiguration in question created a subdivision under Tennessee Code Annotated, '13-4-301(4)(B), and under the City’s Subdivision Regulations.
I am not yet sure how the city can obtain a street right of way that would otherwise create a subdivision without creating that subdivision. We will see below that there is a case in another state that holds that a subdivision created by the construction of a public street is still a subdivision, and that any inequities that arise from its creation in that manner can be corrected by a variance. I am going to need more time to mull this question.
Tennessee Code Annotated, '13-4-301(4)(B) says:
“Subdivision” means, in all counties except those in subdivision (4)(A) [which does not apply to your County], the division of a tract or parcel of land into two (2) or more lots, sites or other
subdivisions requiring new street or utility construction, or any division of less than five (5) acres for the purpose, whether immediate or future, of sale or building development, and includes resubdivision and, when appropriate to the context, relates to the process of resubdividing or to the land or area subdivided.
I assume from your statement that, “Some persons in the [planning commission] meeting took issue with the description of this action as a ‘subdivision,’” opining that a plat could be made and approved for a proposed ROW without creating a subdivision. I have been unable to find any cases in Tennessee involving the question of whether a subdivision can be created by the construction of a public street. In fact, to my surprise there appears to be only one case in the United States where that question has arisen, In Re Martin, 723 A.2d 1064 (Commwlth Ct. Pa. 1998). In that case, there a lot was “orphaned” in 1907 from its parent tract of land by the construction of New Holland Road. The person who purchased the orphaned property in 1995 sought to “add-on” the property to another tract of land, but the township zoning board refused to approve the add-on, reasoning that the lot, which met none of the minimum lot requirements for any use under the city=s zoning ordinance, did not qualify as a lot.
The Commonwealth Court rejected that reasoning because it rendered the property owner=s undersized lot worthless. But on the question of whether the construction of New Holland Road had created a subdivision, the court said:
Although we have been unable to unearth any case authority directly on point where the construction of a public road has resulted in a de facto subdivision of land, thereby creating an undersized lot for zoning purposes, there is authority, which by analogous extension, would dictate this result; that is, whether the physical severance of a parcel of land by the exercise of governmental authority thereby creates an undersized lot, the owner is entitled to the grant of a variance. [Citation omitted by me.] [At 1066]
The court said further that:
Thus, it is clear that the LCPC would recognize that the construction of the New Holland Road in 1907 did, in fact, effectuate a subdivision which thereby created the subject property as a separate parcel of land.... [At 1068].
That case, as isolated as it is, supports the proposition that even where a subdivision is created by governmental action, such as the construction of a road, it is still a subdivision, and the question is how any inequities that result from the creation of a subdivision by that method can be corrected. However, the facts indicate that the property owner was a willing participant in, and a contributor to, the process that led to the creation of a lot of less than five acres. Your letter says that:
[A] local street now has a signalized T-intersection at a five-lane controlled access highway. The City and the property owner agreed to extend the local street across the highway at this intersection. The property owner would provide right-of-way and grading work sufficient to connect the street extension to the street network now existing on the other side of the highway. The City’s role has been to design the street extension, to take ownership of the ROW donated by the property owner, to submit the proposed design to TDOT for approval, and to pave and maintain the street extension (the project also involves closure of another intersection so as to relocate traffic to the signalized intersection of the road extension and the highway.)....
As I read the maps, the property dedicated to the city by the property owner and upon which the city built the street connects with “A” Pkwy NW to “B” Dr. NW, and the closure of “C” Cir. NW where it connected to “A” Pkwy NW., but leaving a portion of “C” Cir. NW open to “B” Drive NW, and, of course to “A” Pkwy via the newly constructed street. That new street configuration is what leaves “remnants” of the former lot of less than five acres. When the project was done, the property owner conveyed the ROW to the city in fee. Surely, the property owner knew the outcome of the reconfiguration of the streets on his property, although the facts in your letter do not indicate whether the property owner was among those at the meeting who protested the creation of the subdivision.
As I read the maps accompanying your facts, it does not appear to me that the division of the property at issue created worthless land. It is difficult to envision the property owner willingly collaborating in a road configuration that produced such a result.
Most of the cases that deal with the creation of subdivisions involve facts that indicate the subdivider intended to sell the subdivided property, usually sooner than later. But at least two cases give us a clue as to the effect of the creation of a lot or lots of less than five acres. In Loftin v. Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991), the plaintiff-developer argued that his property (which he had divided into lots and clearly intended to sell for residences) was not a subdivision because it did not “require” utilities or streets, as provided in Tennessee Code Annotated, '13-3-401(4)(B) [which contains the same definition of Subdivision contained in Tennessee Code Annotated, '13-4-301(4)(B)] because those utilities and streets were already in existence. He won at the trial court level, but the Court of Appeals reversed, declaring that:
The essence of Loftin’s argument appears to be: if the seller makes the imposement necessary for the division and sale of his property voluntarily before anyone tells him that those improvements are required, then the improvements are not required. Furthermore, since the improvements were not required, there is no reason for the seller to go before the Planning Commission to inquire as to whether or not the improvements are required. This argument leads ultimately to a >catch 22' which would render the statute meaningless when applied to any division of property over five acres in size and would defeat the intention of the legislation. Such a result is absurd.... If one were to follow Loftin’s reasoning, small developers (those offering lots of five acres for sale) would be subject to planning commission regulations if utility or road construction were required, but large developers, who installed these conveniences of modern living before offering their lots for sale, would not be under such constraints. Such a construction of this statute would be absurd. [At 479-80]
But in Thompson v. Department of Codes Administration, Metropolitan Government of Nashville and Davidson County, 20 S.W.3d 654 (Tenn. Ct. App. 2000), the Court, citing Loftin, above, declared that:
Looking to the rules of statutory interpretation, the court found that the landowner=s action relating to the road and utility improvements to the land placed him within the subdivision statute [Tennessee Code Annotated, '13-3-401(4)(B)]. Id at 479-80. This issue in Loftin hinged upon what it meant for new street or utility construction to be “required.” However, implicit in the court’s reasoning was that once it was found that new street or utility construction was “required” thus placing a division within the ambit of section 13-3-401(B)(4), that division could come under regulation by the MPC. [At 661] [Emphasis is mine.]
If I read the emphasized language of Thompson, above, correctly, it means that as soon as it is found that the divided land needs, or in the future will need, street or utility construction, it is a Subdivision under Tennessee Code Annotated, '13-4-301 or 13-3-401.
Thompson, above, also said that:
Tennessee law assigns full responsibility for the process of Subdivision regulation, development, application and administration to regional and municipal planning commissions. Tenn. Code Ann. '13-4-303 (1992). The law is clear that if the statutory definition of “subdivision” applies to a division of land, then approval of the MPC is necessary before a Subdivision plan can be receded. The code provision as follows:
(a) From and after the time when the planning commission of any municipality shall have adopted a master plan which includes at least a major street plan, or shall have progressed in its master planning stage to the making and adoption of a major street plan in the office of the county register of the county in which the municipality is located, no plat of a subdivision of land lying within the municipality shall be filed or recorded until it shall have been submitted to and approved by the planning commission and such approval entered in writing on the plat by the secretary of the commission. Tenn. Code Ann. '13-3-402 (1992), [At 661] [Bold emphasis is the court’s.]
It was also said in Loftin, above, that:
Statutes which introduce regulations conducive to the public good are remedial statutes. [Citations omitted by me.] Remedial statutes are to be construed liberally in furtherance of the statute=s purposes. [Citation omitted by me.] [At 470]
The regional plan at issue in that case, declared the court, was made under the authority of Tennessee Code Annotated, '13-3-302, which provides among other things that the plan:
shall be made with the general purpose of guiding and accomplishing a co-ordinated, adjusted, efficient and economic development of the region which will, in accordance with present and future needs and resources best promote the health, safety, morals, order, prosperity and welfare of the inhabitants, as well as efficiency and economy in the process of development.... [At 478]
The Subdivision regulation statutes pertaining to the municipal general plan for development are found in Tennessee Code Annotated, '13-4-302, and contain exactly the same language. Indeed, the City=s Subdivision Regulations are adopted under the authority of Tennessee Code Annotated, ''13-4-301 through 13-4-309. [Article I, 1.2] It is worthwhile here to point out that Thompson, above, involved the question of whether the city could change its interpretation of its subdivision regulations, the product of which was to deny the plaintiff-developer a building permit for which he would have qualified before the city changed its interpretation of its subdivision regulations. The court upheld the city
=s new interpretation. In short, the city has considerable latitude in adoption and interpretation of those regulations.
A “lot” is defined in the City’s subdivision regulations as:
A portion or parcel of land separated from other portions or parcels by description as on a subdivision plat or record of survey or as described by metes and bound, and intended for transfer of ownership or for building development. For the purposes of these regulations, the term does not include any portion of a dedicated right-of-way.
That definition initially bothered me because the facts lack any indication of any intent on the part of the property owner to transfer ownership of the lots of less than five acres created by the street reconfiguration, but as we have already seen, the definition of “Subdivision” in Tennessee Code Annotated, '13-4-401 allows the planning commission to speculate as to the future use of the subdivision of land. Indeed, the definition of “Subdivision” in Article 2, 2.1.35 provides that:
The division of a tract or parcel of land into two or more lots, sites, or other divisions for the purpose, whether immediate or future, of sale or building or development, and includes resubdivision.
Figure 3 on page 14 of that same section of the city’s Subdivision regulations, entitled WHAT IS A SUBDIVISION, contains two property configurations that constitute a Subdivision, and one figure of a property configuration does not constitute a Subdivision. The first configuration is one of a lot of 17 acres and one of 3 acres, which the accompanying brief commentary says that, “This is a subdivision because one lot is less than five (5) acres. The second property configuration reflects several lots of more than five acres, that obviously can be reached only by a road that provides access to all of the lots, and its accompanying language declares that, “This is a subdivision because a new road is needed for access.” It appears to me from your facts and the maps accompanying them that the “remnants” of the land left by the road configuration are “subdivisions” under at least the first of those two property configurations.
Sidney D. Hemsley
Senior Law Consultant