In Beachcroft Properties, LLP v. City of Alabaster, the Alabama Supreme Court indicated that a statutory dedication of a street must include the dedication of the sewer system beneath the street, even when the developer expressly attempts to withhold dedication of the sewer system. (1) This holding expands a previous court ruling that the unrestricted dedication of a street necessarily includes the sewer system beneath. (2) Furthermore, this ruling deviates from the long-established rules that a dedication of property requires intent (3) and that a statutory dedication must be an express dedication. (4)
The decision in Beachcroft is significant because it raises several issues. The decision raises the issue of whether conditional approval of a final plat is proper when there has been a change made to the preliminary plat that is inconsistent with public policy. The decision also raises the question of whether a valid statutory dedication can exist when the dedicator has no intent to dedicate the property. And, the decision raises the issue of whether an exaction requiring the dedication of a sewer system is a "taking" that entitles the dedicator to just compensation under the Fifth Amendment.
The ruling in Beachcroft leads to the proper result. When a developer attempts to make a reservation that is inconsistent with the purpose of the dedication, the reservation should not be approved. However, a better result would have been for the court to have declared that when a dedicator attempts to make any reservation that is contrary to public policy, the dedication will stand but the reservation is void ab initio.
The first section of this Note discusses background information, including the subdivision process, regulatory takings, and the historical development of the case. The second section recites the facts, the procedural posture, and the court's holding and reasoning. The third section analyzes the case including (1) examining whether final plat approval was proper, (2) examining whether intent is required for a statutory dedication, (3) analyzing whether the decision results in a regulatory taking, (5) and (4) discussing the possible impact of this decision. The final section summarizes the issues and conclusion.
The Subdivision Process
Subdivision is generally defined as the process of dividing a larger parcel of land into smaller parcels in an orderly design. (6) There is no formal definition of what constitutes a subdivision; therefore, each state is left to define the term with their respective enabling statutes. (7) Definitions vary between states primarily with regard to the minimum number of smaller lots required and with regard to whether the division of the land must include a new street. (8) When a state fails to define subdivision in its enabling statute, then the local municipalities are left to define the term. (9) Alabama defines "subdivision" as the division of one parcel of land into two or more smaller parcels and has no requirement that a new street be included. (10) This section of the Note discusses the purposes for subdivision control, the general procedure for subdividing a piece of property, and the authority of local planning commissions to regulate subdivisions. This section then discusses exactions and the processes for dedicating land under both common law dedication and statutory dedication.
There are several purposes for subdivision control. The primary purposes are to guide community development in a well-designed manner and to advance the purposes of police power. (11) Most subdivision regulations regulate the design, the financing of the infrastructure, and the overall acceptability of the subdivision. (12) Subdivision control is an exercise of police power because it relates to the "health, safety, morals, and general welfare of the community." (13) As such, many subdivision ordinances require the construction of streets, lights, storm drains, and other public infrastructure. (14) Thus, while the purposes of subdivision control vary in detail, generally ordinances control the growth of development in a manner that protects the health, safety and welfare of the community.
The basic procedure for subdivision approval is typically a two-step process involving preliminary and final approval of a subdivision plat. (15) A plat is a map that describes a piece of land and its features, including boundaries, lots, roads, and easements. (16) The preliminary plat is often prepared by a registered surveyor, an engineer, or a landscape architect and then submitted to a planning commission for approval. (17) Once the planning commission approves the preliminary plat, most regulations require the developer to construct the improvements in the preliminary plat within a specified amount of time. (18) A developer then submits a final plat for approval, and once approved, the plat is filed and recorded. (19)
The authority of local planning commissions to regulate subdivisions is granted by enabling legislation. Enabling statutes vary between states, but most subdivision enabling statutes provide for a local planning commission to approve or disapprove plats. (20) In general, municipalities control the subdivision process through ordinances and statutes requiring a commission to approve a subdivision plat prior to the filing and recording of the plat. (21) Courts have consistently upheld the validity of subdivision controls by finding them comparable to zoning regulations. (22) Some courts have noted that the "recording of a plat is a privilege rather than a right," and therefore, a municipality can impose reasonable standards without violating any of the property owner's constitutional rights. (23)
In regulating subdivisions, local governments typically require some type of exaction before approving the subdivision plat. (24) An exaction is a local government's requirement that lands, improvements, payments or other benefits be provided by the developer in exchange for subdivision approval. (25) Exactions shift the expenses related to the new development from the general public to the developer, who in turn may shift the costs to the buyers. (26) Types of exactions include on-site improvements, off-site improvements, and impact fees. (27) In providing the exacted on-site improvements, a developer will dedicate the required land to public use and construct the improvements at the developer's own expense. (28) These on-site improvements typically include streets, sidewalks, storm drains and other public facilities. (29) Requiring the developer to finance these improvements is appropriate because the developer created the need for the improvements. (30)
A common exaction requirement is a dedication. (31) A dedication is the uncompensated conveyance of land in fee simple to the public or the creation of an easement for public use. (32) Dedications can be made for any public use, including, for example, streets, parks, and public beaches. (33) The two basic requirements for any dedication are that the owner of the land intends or consents to dedicate the land and that the public accepts the dedication. (34) A developer may choose between two types of dedications when dedicating land to public use. (35) One type of dedication is made under common law principles, and the second type of dedication is made under the requirements of a statute. (36) The basic difference between a statutory dedication and a common law dedication is that the statutory dedication generally conveys a fee simple, whereas the common law dedication generally conveys only an easement. (37)
A common law dedication must have a clear offer and a clear acceptance of the land to be dedicated. The intent of the owner is paramount in a common law dedication and can be either express or implied. (38) Express intent to dedicate property can be shown by the owner filing a plat that shows land areas labeled for public use or by filing a deed, which expressly states that the land is dedicated to public use. (39) Implied intent to dedicate can be made by the owner taking action such as allowing the public to use the land in a certain manner for a period of time. (40) In addition to a clear offer to dedicate, a public authority must do more than accept a plat for a dedication to be accepted. (41) The acceptance of a dedication can be shown through a formal resolution by the public authority or by conduct of the public authority recognizing the dedicated property as public property. (42)
A statutory dedication is made pursuant to the terms of a state statute. In many states, the statute merely codifies the common law dedication. (43) The necessary steps to perfect a statutory dedication are prescribed by the statute. (44) To be valid, a statutory dedication of property does not require absolute compliance with the statute but merely requires substantial compliance with the statute. (45) Most states that have statutory dedication also allow for effective common law dedications. (46) Thus, an imperfect statutory dedication may still be effective if it meets the requirements of a common law dedication. (47)
In summary, control of the subdivision process serves many purposes including the controlled growth of future development. The authority of local municipalities to regulate the subdivision process derives from the exercise of police power and enabling legislation. Common exactions include the dedication of land for streets and the financing of improvements by the developer. Finally, a dedication must include both an offer and an acceptance to be effective.
The Takings Clause of the Fifth Amendment provides that no "private property [may] be taken for public use, without just compensation." (48) The Takings Clause was originally intended to apply to physical seizures or occupations by the government with two early exceptions. (49) The two early exceptions were nuisance abatement and reciprocity...