Chapter 4 - § 4.6 • DEDICATION REQUIREMENTS
| Jurisdiction | Colorado |
• C.R.S. §§ 30-28-110(3) and 30-28-133(4)
• C.R.S. §§ 31-23-214, 31-23-217, and 31-23-220
§ 4.6.1—In General
Generally, subdivision of land is a precursor to development. Since development creates demands on public land and infrastructure, an important governmental interest that is advanced by the subdivision process is the identification and dedication of specific land areas for a variety of public uses. These public uses typically include streets, parks, open spaces, trails, school sites, and drainage and utility easements.
Colorado counties have the authority to require subdivision developers to dedicate land or pay fees-in-lieu of dedication for parks and schools, to the extent that the parks and schools are reasonably necessary to serve the proposed subdivision and its future residents.85 Counties may also require fees-in-lieu to be paid directly to school districts.86 Fees-in-lieu collected for schools may only be assessed against the developer during the subdivision approval phase. A Colorado county may not assess fees for schools directly against home buyers in the form of impact fees or exactions.87
Municipalities do not have the same explicit statutory authority to assess fees-in-lieu as counties, but many do so based on either home rule authority or the more general authority conferred by the Local Government Land Use Control Enabling Act (See discussion in Chapter 1, "Planning").88
Requirements for open space and park dedications or fees-in-lieu of those dedications are becoming increasingly common. Such dedications are considered important for ensuring that these amenities are provided as communities grow.89
Any required or requested dedications of property or payments of fees as a condition of land use approvals, including subdivision approval, must meet certain standards. First, there must be an "essential nexus" between the dedication or payment and the impact of the development. Second, the dedication or payment must be roughly proportional to the impacts created by the development.90 This requirement parallels standards established by the U.S. Supreme Court for exactions, and it applies regardless of whether the applicant accepts the condition of approval (that is, regardless of whether the application is approved with "unacceptable" conditions or denied), and regardless of whether the local government is empowered to deny the application in the absence of the condition.91 Much litigation relative to subdivision plats has turned on whether required dedications are roughly proportional to the anticipated impacts of the proposed development. Legal challenges involving the amount or location of required dedications or their intended use are covered in Chapter 5, "Exactions, Dedications, Impact Fees, and Regulatory Takings."
§ 4.6.2—Forms of Dedication
In Colorado, two forms of dedication are recognized: statutory dedication and common law dedication.92 Statutory dedication conveys a fee simple interest in the dedicated property,93 and is only available to municipal governments.94 Common law dedication conveys an easement interest, and is available to both municipalities and counties.95 For municipal governments, if a dedication is defective under one method, it may be effective under the other.96
Statutory dedication has two elements: a specific grant and subsequent acceptance and recording by the municipality. The most common form of statutory dedication is a statement on the face of a subdivision plat, dedicating to and for public use those areas so indicated on the plat. Acceptance of the plat by the local government and recording of the plat complete the statutory dedication.97 When a statutory dedication occurs, the local government obtains fee simple title to the land, such that the subdivider retains no continuing interest in the land.98 In determining whether a statutory grant is effective, courts look to the statutes that were in effect at the time of the dedication.99
Common law dedication also requires dedication by the subdivider and acceptance by the local government. However, in common law dedication scenarios, the dedication and acceptance may take many different forms. Under the common law, the behavior of the subdivider may show its unequivocal intent to dedicate.100 For example, laying out streets and encouraging or allowing their use by the public may result in a common law dedication of those streets, not unlike the way property can be acquired by adverse possession. Unlike statutory dedications, common law dedications result in the conveyance of an easement to the local government, and the the subdivider retains fee simple title to the land.101
§ 4.6.3—Intent to Dedicate
In 1952, the Colorado Supreme Court defined dedication as the appropriation of land, by the owner of the land, to a public use.102 Years earlier, the Court had provided a somewhat different definition, stating that dedication is "an appropriation of land to some public use, made by the owners of the fee, and accepted for that use by or on behalf of the public."103 Under either definition, the operative principle is the "animas dedicandi" (the intent to dedicate).104 If the act of dedication is unequivocal, the dedication may take place immediately.105
While no particular formality is required for a valid dedication, the implied or express intent to dedicate must be present106 and must be clear and unequivocal.107 Thus, undesignated lands colored green on a plat did not evidence the requisite intent to dedicate them for park purposes,108 and designating certain lands adjacent and parallel to streets as "out-lots" did not designate that land for street use.109 On the other hand, the sale of lots by reference to a recorded map or plat upon which public places are shown is an offer to dedicate those places to public use,110 unless the intent to dedicate is not present.111 If, in selling the lots, the owner represents that certain land is reserved for public use (in this case, for a public park), the owner cannot later deny that this was his or her intent.112
§ 4.6.4—Acceptance of Offer to Dedicate
A statutory dedication is accepted when an approved plat is recorded by a municipality.113 By contrast, a common law offer to dedicate must be accepted by the proper authorities.114 Common law acceptance may be formally effectuated in writing, such as by including language of acceptance on an approved plat,115 but can also be implied from such acts as continuous public use,116 or by public authorities taking possession,117 exercising control, or improving a street.118
In the absence of acceptance, the public acquires no rights and assumes no duties.119 It is not necessary that acceptance be immediate, but it must be made within a reasonable time,120 and before the offer is revoked.121 If the local government waits too...
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