HomeMy WebLinkAboutRE Young Subdivision Survey Map (8)Good afternoon Mr. Hartley,
We will review your questions and circle back with you early next week.
Thank you,
Kimberly Romano Kopp, Esq., LEED AP
Brown, Garganese, Weiss & D’Agresta
Senior Attorney
111 N. Orange Ave., Suite 2000
P.O. Box 2873
Orlando, Florida 32802-2873
Phone (407) 425-9566
Fax (407) 425-9596
Kissimmee (321) 402-0144
Cocoa (866) 425-9566
Website: www.orlandolaw.net <http://www.orlandolaw.net/>
Email: kkopp@orlandolaw.net <mailto:kkopp@orlandolaw.net>
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From: Charles Hartley [mailto:chartley@cfl.rr.com]
Sent: Thursday, March 12, 2015 4:50 PM
To: 'David Dickey'
Cc: 'Patrice Huffman'; 'Angela Apperson'; 'David Greene'; 'Rocky
Randels'; johnpekarpe@gmail.com; 'John Cunningham'; Kim Kopp;
info@campbellsurveying.com
Subject: RE: Young Subdivision Survey Map
Dave,
I just noted, please correct Question Four to change “Marino’s
easement” to Marino’s access driveway.
Thank you for your assistance and response.
Best regards,
Charlie
Charles Hartley
399 Holman Road
Cape Canaveral, FL 32920
321-783-8367
mobile 321-795-2775
chartleycrm@cfl.rr.com <mailto:chartleycrm@cfl.rr.com>
From: David Dickey [mailto:D.Dickey@cityofcapecanaveral.org]
Sent: Thursday, March 12, 2015 3:38 PM
To: chartley@cfl.rr.com <mailto:chartley@cfl.rr.com>
Cc: Patrice Huffman; Angela Apperson; David Greene; Rocky Randels;
johnpekarpe@gmail.com <mailto:johnpekarpe@gmail.com> ; John Cunningham;
Kim Kopp; info@campbellsurveying.com <mailto:info@campbellsurveying.com>
Subject: RE: Young Subdivision Survey Map
Charles - thanks for the comments/questions related to the Young’s
application for a lot split on Holman Road. I will be discussing your
email with the City Attorney’s office. Dave
From: Charles Hartley [mailto:chartley@cfl.rr.com]
Sent: Thursday, March 12, 2015 2:53 PM
To: David Dickey
Cc: Patrice Huffman; Angela Apperson; David Greene; Rocky Randels;
johnpekarpe@gmail.com <mailto:johnpekarpe@gmail.com> ; John Cunningham;
Kim Kopp; info@campbellsurveying.com <mailto:info@campbellsurveying.com>
Subject: RE: Young Subdivision Survey Map
David,
Thank you for meeting with me and providing a copy of the plat survey
and review comments of the City Engineer John Pekar, PE and John
Cunningham, Assistant Fire Chief.
I also thank you offering an opportunity to seek a better understanding
of this proposed development. As you know my property joins Holman Road
and the Marino’s access driveway.
My preliminary questions pertain to code interpretation arising from a
review of the Young’s Subdivision Plat survey and documents pertaining
to that plat survey. Based on the City’s file, this plat survey and the
“Opinion of Title” appears to be the only development documents provided
for City Staff, Fire Safety and City Engineer review?
1. My first question – does the proposed lot split achieve code
compliance for a legal cross access easement?
According to the plat survey that was provided to the City, there’s a
“ingress and egress, utilities and access” easement on the lot to be
subdivided which is 20 X 150 ft and runs parallel to and borders the
south property line of the Marino’s property. The plat survey shows the
20 foot easement overlapping the 10 foot setback line. The easement is
shown to be within the property included within the new lot No. 1 and
not a part of the existing parcel that forms Lot No. 2, which contains
the residence of the principal property owner.
Importantly, the west property line of Lot No. 1 crosses the entire
width of the parcel. This not only creates a landlocked situation for
Lot No. 2, but Lot No. 2 becomes dependent on Lot No. 1 to grant an
ingress and egress easement for access road and utilities.
This is not a platted easement as per Surveyor’s Note No. 1, and it is
not show otherwise or it’s intended use clearly stated in the Plat Notes
or Plat Report.
Please see Sec. 98-41 Information required, (a) (5) (D) which read as
follows:
(5) Show, at a minimum, the following existing conditions on the plat:
(D) Easements, including location, width and purpose.
The ingress and egress easement shown on Lot No. 1 described above is a
proposed easement and it does not presently exist. No legal description
is provided for it. An ingress and egress easement cannot be created by
a preliminary plat survey drawing. Logically the ingress and egress and
utility easement would flow from the primary property owner to a new lot
owner and not vice versa. Therefore the one who owns the land and who is
creating the new lot is the party who would grant easement rights to
another party by deed.
It is an established tenant of Florida law that an owner cannot grant
an easement to themselves. A property owner cannot assign or deed a
cross access easement to themselves as a matter of law.
If a cross access easement doesn’t exist on Lot No. 1 nor be legally
created and recorded, can legal access be achieved and importantly, does
a legal cross access easement exist?
2. Second question - Again pertaining to a review of the
submitted plat survey and legal description, the legal description in
neither the plat survey nor the “Opinion of Title” included page two
(2), “See Reverse Side,” of the original recorded Jahn-Butler Deed, or
the “Restrictive Covenant” that provided the language regarding legal
access and entitlements to the existing easement.
Please note: The legal description provided reflects a corrected
scribner’s error for Bk 6929, Pg 121. Page 2 is found on Bk 1629, pg
122. The scribner’s error correction did not reform page two of the
original deed legal description. The Restrictive Covenant was recorded
after this correction was made.
This is a compliance issue of Sec. 98-41 (g), Information Required and
Sec. 98-66 (c) (2), Lot Splits. Can proper review be accomplished
without a complete legal description including all legal agreements for
property rights and in particular, entitlements pertaining to easements?
This could have an impact on code interpretation and review
considerations for the development.
I understand that the City Attorney has given an opinion that the
recorded “Restictive Covenant” between the Marino’s and Young’s that
clarified the benefits and burdens of the Jahn – Butler and now Marino -
Young easement is a private agreement and as such, the City does not
have to consider it at all. However, this does not relieve a
Professional Surveyor from preparing a survey map for real property
improvements to show the complete legal description on the plat survey
map along with any Notes or Reports. Any descrepancies and
inconsistences between the real property description and the survey map
must be shown, i. e., right-of-ways, easements and other real property
concerns. The plat map survey, submittal and layout must conform to the
requirements of FAC 5J-17.052.
The recorded Restrictive Covenant runs with the land and specifically
refers to the Young’s “proposed lot” and to the language found on Pg 2
of the Jahn – Butler Deed. It specifically states on Pg 3, par. 1 that
“the easement [is] for the benefit of both the existing and proposed
lot, subject to the following covenants and restrictions, which the
parties agree will run wih both parcels of the above described land and
bind both parties, their respective heirs, executors, administators and
assigns.”
I further also understand the City narrowed the scope of City’s review
of the interpretation “to whether said access exists.” The issue is not
just “access” for purposes of ingress and egress only. The issue is for
a “perpetual cross access easement,”see Sec. 98-66 (f) (4). The City’s
definition of “access easement” means an easement “dedicated and used
for utilities and utility vehicles.” Please note that the requirements
for an easement arise from Sec. 98-41 (b) (5) (D), “Easements, including
location, width and purpose.” The issue is therefore, whether the
“location, width and purpose” will permit the necessary services for
utilities, vehicles, fire and emergency vehicle access in compliance
with building codes, ordinances and standards. It is broader and deeper
in scope and meaning for the purposes of plat survey review than just
access for purposes of ingress and egress to the property.
We do not know how or to what extent the language found on Pg 2 of the
Jahn – Butler Deed and the “Restrictive Covenant” that clarifies the
scope and use of existing easement would have on the review and approval
process for this new lot.
Again, this, is a compliance issue. I urge the City to reconsider the
application of a complete recorded Legal Description to the plat review
process.
3. Third question - The plat survey included “Easement
Dedication” for public use, fire and emergency access and the
installaton and maintenance of utilities, but did not specify which or
what easement; however, it stated, “no other easements are dedicated or
granted,” please see Sec. 98-41 (b) (5) (D). The plat needs to clarify
what “easement” or “easements” are to be dedicated?
4. Fourth question – Again, the City’s definition of “access
easement” means an easement “dedicated and used for utilities and
utility vehicles.” If the answer to No. 3 above it that the dedication
applies only to the utility easement within the site plan itself and
does not include dedication of utilities within the Marino’s easement,
where is the utility easement(s) which provide utilities to the new lot
No. 1 per Sec. 98-41 (b) (5) (D).
Thank you for your assistance and response to the these initial plat
map review questions.
With kindest regards,
Charles Hartley
399 Holman Road
Cape Canaveral, FL 32920
321 783-8367
chartley@cfl.rr.com <mailto:chartley@cfl.rr.com>
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Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
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addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
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