Florida Association of County Engineers and Road Superintendents

1
Florida Association of County Engineers and Road
Superintendents

• Annual Conference
• June 26-29, 2002
• MAINTENANCE
• DOESNT MAKE
• A ROAD PUBLIC

2
MAINTENANCE DOESNT MAKE A ROAD PUBLIC. 4 YEARS
MAINTENANCE DOESNT MAKE IT PUBLIC
EITHER. NEITHER DOES 10, 15, OR MAYBE EVEN 20
YEARS. THATS WHAT F.S. 95.361 THE CASE LAW
INTERPRETING IT SAY.
3
TYPICAL PROBLEM

• The only access to a parcel of land is by
• A road that has been maintained by the
• county for at least 10 or 15 years. The
• county has no record of who constructed
• the road. There are no records going back
• that far or they have been destroyed.
• Maybe the County constructed the road.
• Maybe not.

4
The law provides that a road must be both
constructed and maintained continuously for 4
years by a governmental entity before it is
deemed dedicated to the public.   Because there
is no evidence of who constructed the road, title
insurers have refused to insure access to the
parcel of land. Without a title insurance policy
insuring access, the owner cannot obtain a loan
build a home.

5
A ROAD MAINTAINED BY A GOVERNMENTAL ENTITY
THAT WAS PRIVATELY CONSTRUCTED IS NOT A
PUBLIC ROAD F.S. 95.361. Balbier v. City of
Deerfield Beach, 408 So.2d 764 (Fla. 4th DCA
1982) Osceola County v. Castelli, 435
So.2d 417 (Fla. 5th DCA 1983) St. Joe Paper
Co. v. St. Johns County, 383 So.2d 915 (Fla.
5th DCA 1980).
6
POSSIBLE SOLUTION Amend F.S. 95.361 to add a 7
year maintenance provision so that regardless of
who constructed it, when a road has been
regularly maintained or repaired for 7 years by a
governmental entity, the road shall be deemed to
be dedicated to the public.
7
No Record of Construction
8
CURRENT STATUTE
SEE P. 4 OF THE OUTLINE
9
SOME PROBLEMS WITH THE CURRENT STATUTE

• Unclear whether the road is an easement or fee
• The width of the road is only generally defined
• Are the ditches and swales on the sides of the
  road included?
• Unclear what the procedure for and compensation,
  if any, is for the landowner

10
SOME PROBLEMS WITH THE CURRENT STATUTE

• Unclear whether the road is an easement or fee
• The width of the road is only generally defined
• Are the ditches and swales on the sides of the
  road included?
• Unclear what the procedure for and compensation,
  if any, is for the landowner

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HERES A ROAD WITHOUT CONSIDERING THE LAND
OUTSIDE THE ROADBED.
12
ASSUME A STATUTE PROVIDES THAT A ROAD SHALL
INCLUDE 1/2 THE WIDTH OF THE LAID-IN ROADBED ON
BOTH SIDES OF THE ROAD.
13
Citizens Home
Sluice
HERES A POSSIBLE EFFECT OF THE STATUTE AS
APPLIED TO THE LAND.
14
SOME PROBLEMS WITH THE CURRENT STATUTE

• Unclear whether the road is an easement or fee
• The width of the road is only generally defined
• Are the ditches and swales on the sides of the
  road included?
• Unclear what the procedure for and compensation,
  if any, is for the landowner

15
SOME PROBLEMS WITH THE CURRENT STATUTE

• Unclear whether the road is an easement or fee
• The width of the road is only generally defined
• Are the ditches and swales on the sides of the
  road included?
• Unclear what the procedure for and compensation,
  if any, is for the landowner

16

• Disagreement over the bulleted issues discussed a
  moment ago and no doubt there are other issues.
• The more changes to the current statute, the less
  likely its passage.
•  
• Quibbling over differences -- among parties
  who generally support the addition of a 7 years
  maintenance provision will bog down passage.
• More for legislators and opponents to argue
  about preventing passage.

17
OCTOBER 2001 REVISION
See P. 9 of the outline
18
CRITICISM OF THE OCTOBER 2001 REVISON
See P. 14 See P. 16 See P. 19 of the outline.
19
JUNE 15, 2002REVISION
See P. 21 of the outline.
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For all its imperfections, the statute has worked
pretty well   EXCEPT FOR THE CONSTRUCTION
REQUIREMENT      
21

• The more changes to the current statute, the less
  likely its passage.
•  
•  Disagreement over many issues, such as fee or
  easement, width of road, etc.
•  
• But most support the 7 years maintenance
•  
• The fewer changes, the more likely its passage.

22
Leave for future action, the matters that there
is no general agreement on.    SUPPORT WHAT THERE
IS GENERAL AGREEMENT ON the addition of a 7
YEARS MAINTENANCE provision to the current
statute.