Public Streets, Highways, And Service Easements Vacation Law Does Not Provide Sole Method For Vacating Public Easements Or Rights-Of-Way

In Citizens for Responsible Equitable Environmental Development v. City of San Diego, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., May 20, 2010) a court of appeal considered whether a city provided adequate notice of its intent to vacate various public easements and a public right-of-way where it did not comply with the procedures set forth in the Public Streets, Highways, and Service Easements Vacation Law (“PSHSEVL”). The court of appeal held that the PSHSEVL does not provide the exclusive method for vacating public easements or rights-of-way and the city did not err in following its municipal code, which allowed for the city to vacate public easements or rights-of-way under either the Subdivision Map Act or the PSHSEVL.

Facts

The City of San Diego (“City”) published a notice of hearing on July 10, 2008, for the redevelopment and expansion of a regional shopping center (“Project”) which stated a public hearing would be held on July 29, 2008, “concerning the ‘[m]atter of approving, conditionally approving, modifying, or denying an application for amendment to the Progress Guide and General Plan, [and] the University Community Plan [and] Vesting Tentative Map with summary vacation of utility, pedestrian, and non-motor vehicle easements and public right of way.'” After the hearing, the City Council adopted a resolution which approved the tentative map. The resolution “states that the property contains a right-of-way and easements that must be vacated ‘pursuant to the [Subdivision] Map Act to implement the Final Map in accordance with . . . section 125.0430.'” The resolution also provides that pursuant to Government Code section 66434, subdivision (g), the named public service easements and rights-of-way in the boundaries of Project shall be vacated. The resolution lists two water and sewer easements, one pedestrian and non-motor vehicle easement, and one non-motor vehicle and pedestrian right-of-way.

The Citizens for Responsible Equitable Environmental Development (“CREED”) filed a petition for writ of mandate and a complaint for injunctive and declaratory relief. CREED claimed that City’s notice of the City Council hearing was defective under the Subdivision Map Act, PSHSEVL, and City’s Municipal Code. City asserted that PSHSEVL was not applicable to Project “because the Subdivision Map Act and the Municipal Code provide an alternative method for vacating public easements and rights-of-way, and that the City had effectuated the vacations at issue in this case pursuant to the Subdivision Map Act and Municipal Code provisions implementing the Subdivision Map Act, rather than the PSHSEVL.” The trial court denied CREED’s petition and request for declaratory and injunctive relief finding that City had complied with all applicable notice requirements.

Decision

The court of appeal affirmed the judgment of the trial court. The court of appeal found City’s notice that it intended to vacate various public easements and a public right-of-way was adequate.

The Subdivision Map Act requires that a subdivider file a “tentative map” that is created “for the purpose of showing the design and improvement of a proposed subdivision and the existing conditions in and around it and need not be based upon an accurate or detailed final survey of the property.” A local agency considers approval of “a tentative map at a noticed public hearing.” Notice of the hearing must be published “in at least one newspaper of general circulation, at least 10 days prior to the hearing.” After a local agency approves a tentative map, it must approve a final map that substantially conforms with the tentative map. Pursuant to the Map Act, local agencies may adopt their own specific requirements for the application and approval process. The Map Act, at Government Code section 66434(g), provides that easements and public streets “that are not shown on a final map shall be deemed abandoned” if “a written notice of each abandonment is listed by reference to the recording data or other official record creating these public streets or public easements and certified on the map by the clerk or the legislative body or the designee of the legislative body approving the map.”

PSHSEVL (Street and Highways Code § 8300 et seq.) specifies the procedures a public entity may use to initiate, consider, and approve vacation of public service easements. Section 8311, subdivision (a), specifically provides that the procedures provided for in PSHSEVL “are alternative procedures for vacating streets, highways, and public service easements.” Subdivision (a) goes on to state, “The authority granted in this part is an alternative to any other authority provide by law to public entities.”

City’s Municipal Code at chapter 12, article 5, division 1, provides that article 5, which governs tentative maps, vacation of public rights-of-way, and abandonment of public easements “is intended to ‘supplement the provisions of the Subdivision Map Act and [the PSHSEVL].” Division 4 specifies the process for approving tentative maps. Division 9 provides that the vacation of a public right-of-way may be initiated by a City Council resolution, by petition or a request by any person. “A public right-of-way also may be vacated by filing a tentative map and a . . . final map pursuant to the Subdivision Map Act . . . .” The provisions for vacation of easements are nearly identical to those for vacation of rights-of-way.

The court concluded that “it is clear that state law permits public entities to vacate rights-of-way and easements pursuant to either the Subdivision Map Act or the PSHSEVL.” Local agencies may vacate easements and public rights-of-ways “pursuant to the tentative and final map approval process, without also having to comply with the notice requirements of the PSHSEVL.”

CREED argued the Municipal Code requires City to comply with PSHSEVL’s notice requirements whenever it vacates a public easement or right-of-way. City argued its Municipal Code follows state law and City may vacate either under the Subdivision Map Act or PSHSEVL. The court agreed with City and found that City’s Municipal Code does not require it “to provide notice mandated for vacation effectuated pursuant to the PSHSEVL when it vacates a right-of-way or easement pursuant to the Subdivision Map Act.

The Municipal Code provides that when a land use plan or zoning ordinance is to be considered at a public hearing, the City Manager must publish a notice of public hearing at least ten business days before the hearing. Creed argued that this provision of the Municipal Code “required the City to publish a separate notice of its intent to amend a land use plan “in addition” to the published notice that it provided of its intent to vacate a public right-of-way and various public easements.” The court rejected this argument finding that nothing in the notice provision required that additional notice be provided in a separate notice.

Questions

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